text:
    (No. 80-CC-0994
    Richard H. Peterson, Administrator of the Estate of Claude E. Tuggle, Deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 27, 1984.

    Phelps, Carmody & Kasten, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This is an action for wrongful death against the State of Illinois. The complaint alleges that Claude Tuggle, the decedent, was killed because the State of Illinois either negligently failed to maintain the shoulder along Illinois Route 4 or negligently failed to warn the decedent of the dangerous shoulder. The Claimant is the administrator of the estate of the decedent.

On May 1, 1979, decedent was driving north on Illinois Route 4 toward Carlinville, Illinois. At a point approximately four miles south of Carlinville, there is a curve sweeping to the driver’s left. On the right side of the road there was a pickup truck parked along the shoulder. According to the only two eyewitnesses to the accident, Beulah Gansz and Robert Maurer, as decedent approached a construction area, his car went off onto the shoulder on the right but appeared to be totally under control. As he approached the truck parked in his path, decedent tried to bring his car back onto the highway but in doing so lost control of his car. The right front wheel came back onto the highway, and the car seemed to hop onto the highway and then spin in a counterclockwise direction for approximately 100 feet before it hit an approaching car driven by Robert Maurer in the southbound lane. Tuggle died as a result of this collision.

Duane Dunlap, a consulting highway engineer, testified that the facts surrounding this accident are consistent with a phenomenon known as tire nibbling. Tire nibbling occurs when there is a drop-off along the shoulder of a highway and the tires on a car are forced to “climb” the drop-off in order to get back onto the highway. As a tire climbs the drop-off, the tire is exerting a force against the drop-off and the drop-off is exerting a holding force against the tire. As the front tire reaches the top of the drop-off, it is still exerting an inward force while the rear tire is still having a holding force exerted against it. The result is that the car will spin in a counterclockwise direction.

The State of Illinois elicited testimony from its own witnesses that the drop-off in this area was between one and two inches deep at the accident site. However, several witnesses testifying for Claimant testified that the drop-off was between three to six inches along the accident site.

While the State of Illinois has not filed a brief in defense of this claim, the Court is nonetheless aware that in Lee v. State (1964), 25 Ill. Ct. Cl. 29, this Court determined “while the State must use reasonable care in maintaining the shoulder of the highway, there is no basis to hold that a difference of three to four inches in the levels of the road and shoulder constitute a dangerous condition per se.” The Court is satisfied, however, that Claimant in this case has provided a basis for distinguishing Lee from the case at hand.

In Lee, the accident occurred in 1962. No evidence was ever presented to establish the proper design and maintenance standards for highways as they existed in 1962. In the case at hand, however, Claimant’s witness Dunlap, a consulting engineer well versed in the area of highway safety and design, testified that the maintenance of the shoulders along Illinois Route 4 deviated from acceptable highway safety standards as those standard existed at the time of the accident.

According to Dunlap, the American Association of State Highway and Transportation Officials (AASHTO), of which the State of Illinois and the Department of Transportation are members, formulates highway safety standards on a national basis. Over the years AASHTO has issued several sets of policies or standards in the manual entitled Highway Design and Operational Practices Related to Highway Safety (1974). With regard to the maintenance of highway shoulders, the proper standard is that all parts of the shoulder that touch the edge of the pavement should be kept flush with the pavement. Respondent has presented no evidence or argument to suggest that these standards are not applicable to the State of Illinois in the situation at hand. As such the standard presented by the Claimant is admissable as evidence that may be considered by the trier of fact to be the proper standard of care. (American State Bank v. County of Woodford (1978), 55 Ill. App. 3d 123, 371 N.E.2d 232.) Deviation from this standard may then be further considered as supporting a failure to exercise due care on the part of Respondent.

Dunlap testified that proper highway standards dictate there should be no drop-off on the side of the highway and that tire nibbling can occur with as little as one-half inch of drop-off, but that the probability of the phenomenon increases in proportion to the depth of the drop-off. Given the fact that the events surrounding the accident are consistent with the phenomenon known as tire nibbling, and given the testimony that indicated that there was a three- to six-inch drop-off along the shoulder, we believe that more likely than not the accident was at least in part proximately caused by the fact that decedent tried to bring his car back onto the road at a point which had a drop-off contrary to recognized safety standards. It is further undisputed that there were no signs warning the decedent of the dangerous condition.

On the other hand, while Respondent’s negligence is established, it is further established that decedent was not exercising reasonable care for his own safety and was thus guilty of contributory negligence. There was no reason that decedent could not have been aware of the road construction and of the oncoming traffic. There is no evidence that his view of the entire area surrounding the scene of the accident was in any way impaired. He had ample opportunity to slow or stop his vehicle rather than drive off the roadway onto the shoulder if either the construction or the oncoming traffic presented a potential problem in regard to passing the scene of the accident in his own lane. Parkinson v. State (1976), 31 Ill. Ct. Cl. 98.

All negligence cases tried in the circuit courts of Illinois on or after June 8, 1981, are to apply the rule of comparative negligence in the place of the old rule whereby contributory negligence completely bars recovery. (Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886.) The policy reasons for replacing the old contributory negligence rule are adequately explained in Alvis. The harshness of the rule has been lamented by this Court. Parkinson v. State, supra, 103, 104.

Section 4 of article 13 of the Illinois Constitution of 1970 abolished sovereign immunity in Illinois, except as the State legislature “may provide by law.” The Immunity Act was then enacted by the legislature to provide that the State “shall not be made a defendant or party in any court” except as provided in the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 127, par. 801). Section 8(d) of the Court of Claims Act authorizes exclusive jurisdiction in the Court of Claims to hear “all claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation, in a civil suit. . . .” (Ill. Rev. Stat. 1979, ch. 37, par. 439.8(d).) The “like cause of action” provides a legislative directive that this Court allow an injured party to recover in tort against the State the same as such person could recover in tort against a party in the Illinois courts of general jurisdiction. The only legislative restriction is that an award for damages in tort in a case such as this shall not exceed $100,000.00. If this court were to bar a claim in tort because of contributory negligence when the same injured party could recover in a civil action in circuit court because of the application of comparative negligence, then the statutory directive will not have been followed. We therefore find that the doctrine of comparative negligence as adopted by the Supreme Court of Illinois in Alvis v. Ribar is to be applied in cases sounding in tort in the Court of Claims.

Alvis adopted what is known as the doctrine of comparative negligence in its pure form. By this is meant that the Claimant’s total damages are simply reduced by the percentage of fault attributable to him. Because such reduction is used, it is necessary to determine the effect of the statutory $100,000.00 limit on the determination of damages. Claimant argues that his potential damages exceed $100,000.00 and that the award should first be made as to total damages without regard to the statutory limitation, that this total award should then be reduced by the percentage of decedent’s negligence (if any), and that the damages then resulting from the comparative negligence formula are the only damages subject to the $100,000.00 limitation. The Court has considered similar issues in the past and has held consistently that any reductions or setoffs must apply to and be deducted from the statutory limit and not the total potential award where the total award exceeds the limit. (Williams v. State (1965), 25 Ill. Ct. Cl. 249.) The reason for this is there can be but one satisfaction for any injury, and therefore other recoveries must be deducted from the amount the State would otherwise be actually required to pay.

In the case of comparative negligence, however, we are not dealing with a situation where Claimant has already received some other satisfaction. Rather, the damages are being reduced by virtue of Claimant’s negligence. Hence, the total amount of possible recovery against the State cannot even be determined until the deduction resulting from Claimant’s negligence is first determined. The Court therefore finds that Williams is not applicable as to the issue of reduction and that the full potential award should first be determined before any reduction is made for Claimant’s negligence.

Decedent was 28 years old when he died. He left a widow and two children, a daughter, age seven, and a son, age three. He had been a minister since 1977 for the Assembly of God churches. The family lived in Kewanee, Illinois, where he was an assistant pastor. At the time of his death, decedent was en route to the State headquarters of the Assembly of God churches near Carlinville.

Decedent’s widow testified that decedent was a good provider and spent very little on himself. His health was good; he did not drink intoxicants. His income at the time of death was $562.50 per month plus additional allowances and benefits of over $400 per month.

Fred Gottheil, a professor of economics at the University of Illinois, testified that decedent’s work life expectancy on the date of death was 34.1 years and that his full life expectancy was 43.7 years. Professor Gottheil found the present cash value of decedent’s lost earnings to be $235,749.33.

Decedent’s funeral bill was $2,409.50.

The measure of damages in a wrongful death claim is the benefits of pecuniary value, including money, goods and services decedent might have reasonably been expected to contribute to his widow and children. The factors to be considered are: what decedent customarily contributed in the past; what he earned and what he was likely to have earned in the future; what he spent for customary personal expenses; what instruction, moral training and superintendence of education he might reasonably have expected to give his children had he lived; his age; his health; his habits of industry, sobriety and thrift; and his occupation. (Illinois Pattern Instruction 31.04.) Based upon all these factors, the Court finds that the total damages are $500,000.00.

As to the amount of negligence on the part of the decedent, the Court finds it to be 60%. The net damages not attributable to decedent’s negligence are therefore $200,000.00. The Court finds that the damages which should therefore be awarded to Claimant on the claim for wrongful death are $100,000.00, the statutory limit.

Claimant also has brought a separate claim for the funeral bill of $2,409.50. (Eggimann v. Wise (1964), 56 Ill. App. 2d 385, 206 N.E.2d 472.) However, the statute provides that the award “shall not exceed the sum of $100,000.00 to or for the benefit of any claimant.” (111. Rev. Stat. 1979, ch. 37, par. 439.8(d).) Since the administrator is the only Claimant both for the injuries under the wrongful death claim and for the funeral expenses, the limitation clearly applies to the claims in the aggregate, not separately. (Bovey v. State (1955), 22 Ill. Ct. Cl. 95.) Therefore, the Claimant is not entitled under the Act to anything over the single award of $100,000.00.

Based on the foregoing it is hereby ordered that the Claimant, Richard H. Peterson, administrator of the estate of Claude E. Tuggle, be, and hereby is, awarded the sum of $100,000.00.


source: Caselaw Access Project

author: Holderman, J.

license: Public Domain

text:
    (No. 80-CC-1366
    Joseph B. Kelley and Preferred Risk Insurance Company, Claimants, v. The State of Illinois, Respondent.

      Order filed February 15, 1985.

    Heyl, Royster, Voelker & Allen, for Claimants.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant in this case filed a claim in tort for personal injury and property damage due to an accident which occurred on March 1, 1978, between Claimant and Dean Floore, an employee of the State of Illinois.

Claimant Joseph B. Kelley was operating his vehicle in a northerly direction on Illinois State Route 54, at or near its intersection with County Road 7.25E, in or near Barclay, Sangamon County, Illinois. Claimant’s wife and grandson were passengers in his car.

Respondent’s employee, Dean Floore, was the operator of a 1972 International Loadstar 1700 truck and was operating the vehicle in a northerly direction ahead of Claimant at the location above set forth.

From the testimony of the witnesses, Respondent pulled his truck off the right side of the road to make a left hand turn at the intersection. Claimant testified he thought Respondent was going to stop while off the right side of the road and when Respondent swerved back onto the road, Claimant pulled his vehicle to the left hand side of the road trying to avoid an accident. A collision followed, causing personal injuries and collision damage to Claimant’s automobile.

It appears from the record that Claimant did everything possible to avoid an accident and was responsible for there being a limited amount of damage rather than an extremely bad accident.

The following expenses were incurred: medical expenses for Joseph B. Kelley in the amount of $516.00; $1,136.08 for automobile repair; $39.15 for an appraisal fee; $25.00 for towing charges; $32.10 for medical expenses of Howard J. Watkins (one of the passengers) and $400.00 for additional transportation.

This Court has previously held that while the State is not an insurer against all accidents occurring on its highways, it is responsible when the State is negligent and that negligence is the proximate cause of Claimant’s injury and Claimant was free from contributory negligence. 30 Ill. Ct. Cl. 410.

In the present case, there is not any indication of contributory negligence on the part of Claimant. This Court finds that negligence of Respondent was the proximate cause of the injuries complained of.

Award is hereby entered in favor of Claimants in the amount of $2,148.33.


text:
    (Nos. 80-CC-1451, 80-CC-1543 cons.
    Robert Oakes and Judith Oakes, Claimants, v. The State of Illinois, Respondent.

      Opinion filed September 21, 1984.

    Peter F. Ferracutt, for Claimants.
    Neil F. Hartigan, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimants in this cause, husband and wife, have filed suit against the State of Illinois for injuries sustained on July 4, 1979, at or about the hour of 8:00 p.m. Claimant Robert Oakes was driving a motorcycle in a northerly direction along and upon County Highway 3, approximately two miles south of Sheridan, between Route 52 and Sheridan, Illinois, in La Salle County, Illinois.

Claimants allege that the motorcycle driven by Claimant Robert Oakes struck a large hole, or a series of holes, in the northbound lane on the road that was known as Bernard curve, which is a portion of the Sheridan spur. The Claimants allege that the holes caused Claimants’ motorcycle to go out of control and veer into a southbound lane striking an automobile operated by David Dorrick.

Both Claimants sustained rather severe injuries as a result of the accident. Specifically, Claimants allege that it was negligence on the part of the State that led to the accident and to the ensuing lawsuit and that the State of Illinois:

“A. Carelessly and negligently permitted a large hole to exist on the surface of said highway, despite having knowledge of the existence of said hole in sufficient time to correct said hazard;
B. Carelessly and negligently failed to warn the public, including the Claimants, of the existence of holes or uneven surface of said highway despite having knowledge or notice of said defects and failed to post said warning;
C. Carelessly and negligently failed to construct, maintain or repair the aforesaid portion of the Sheridan Spur;
D. Carelessly and negligently failed to properly inspect the aforesaid portion of the Sheridan Spur so as to ascertain the existence of the hazard.”

As a result of the accident, Claimants state they sustained very serious injuries, requiring multiple surgeries and a tremendous amount of lost time from both of their occupations.

Respondent takes the position that the Claimants have failed to demonstrate by a preponderance of the evidence that Respondent negligently maintained the highway in question. The record shows that repairs had been made in that area no later than two days before the accident happened.

Brockman v. State (1975), 31 Ill. Ct. Cl. 53, lays down the following rules relative to what is necessary for a Claimant to prove before an award can be made:

“Negligence — due care. The State is not an insurer of the condition of highways under its control but does have a duty to the public to use reasonable care in maintaining roadways.
Same — burden of proof. The Claimant bears the burden of proving by a preponderance of the evidence that the State is negligent; that the State’s negligence proximately caused Claimant’s injury; and that Claimant is free of contributory negligence.
Same — evidence—Where design of a highway is in conformity with standards in the industry at the time it was constructed; and where the State employed two persons to check drains along county roads during working day, the State is not guilty of negligent design and maintenance of a highway.”

Respondent also cites Laine v. State (1977), 32 Ill. Ct. Cl. 10, which states that “in order for Claimant to recover, he must prove that the State was negligent, that such negligence was the proximate cause of the injury, and that Claimant was in the exercise of due care for his own safety.” Respondent further cites Moldenhauer v. State (1978), 32 Ill. Ct. Cl. 514, where the Court laid down the rule that “in a negligence action, Claimant bears the burden of proving by a preponderance of the evidence that State was negligent, such negligence was the proximate cause of the accident, and that Claimant was not contributorily negligent” and that “Claimant must show Respondent had, or should have had, knowledge of alleged defects before recovery can be had in negligence action.”

Claimant, in his complaint, alleges that the accident was caused primarily because the motorcycle driven by Claimant Robert Oakes struck a hole in the pavement. The commissioner’s decision emphasizes the fact that there is not any testimony in the record from Claimant or any other witnesses indicating there was a hole in the pavement. Testimony does refer to some rough spots but not to any holes.

It is interesting to note that the record of Respondent shows repairs were made two days prior to the accident, which is strong evidence that the State was alert in trying to maintain a serviceable highway. The record shows this road was built in 1932, some 47 years before the accident occurred.

The record is completely silent as to any knowledge that the State may have had if, in fact, there were holes in the pavement. This, in the opinion of the Court, indicates there were not any holes and even if there were, there was no evidence in the record indicating the State had knowledge of such defects.

It is the Court’s opinion that the Claimants have failed in their burden of proof and this case is dismissed.


author: Roe, C.J.

text:
    (No. 80-CC-1623
    Harry Rossett, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 11, 1985.

    Kugler, De Leo & D’Arco, Ltd., for Claimant.
    Neil F. Hartigan, Attorney General (H. Alfred Ryan, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

The Claimant, Harry Rossett, brought this claim for damages against the Respondent for personal injuries he suffered from falling down stairs located at the Capitol Building in Springfield, Illinois, on June 6, 1978. The claim was assigned to a commissioner. A hearing was held. Both parties submitted briefs and the matter is now before us for decision.

According to the Claimant’s testimony the facts are as follows:

On June 6, 1978, the Claimant, a paint salesman with about 50 years’ experience, was in Springfield for the opening of bids furnished to the Respondent on paint for State buildings. About noon that day he left the State Office Building and proceeded to and through the Capitol Building intending to return to the State House Inn where he was staying. The Claimant exited the Capitol on the north side and encountered a set of steps. He testified that it was “the most beautiful balmy day (he had) ever witnessed” and the steps were crowded with people who were eating. It was so crowded, he testified, that there were no paths open to walk through down the stairs and the people had to move just so he could get out the door. Railings were obstructed from view by the many people loitering about. As he pushed through the people to go down the steps, he stepped on a foreign substance, and fell forward very fast to the bottom of the stairs. He was taken by ambulance to Memorial Hospital.

The case proceeds under a negligence tort theory, the elements of which are well defined by case law. The duty of care that is owed to the Claimant depends upon his status at the time of the injury. The Claimant was clearly a business invitee, as he was on the premises to sell paint to the State of Illinois. As such, the State owed a duty of reasonable care to the Claimant for conditions existing on the premises. (Kumiga v. State (1966), 26 Ill. Ct. Cl. 77/431; White v. State (1966), 26 Ill. Ct. Cl. 77.) However, the State is not an insurer of the premises over which it has control and in order for liability to attach it must have actual or constructive notice of the condition causing the injury complained of. Kriesal v. State (1978), 32 Ill. Ct. Cl. 101.

We think that the State allowed a dangerous condition to exist under the facts in this case by allowing a crowd so large to block the doorway, to block the vision and use of the handrails, and to prevent safe access to passage from the exit down the stairs, and all the while eating during the noon hour. Due to the size of the crowd and the time of day, we think that the State should have known the conditions to be dangerous and that a fall was foreseeable. However, we also find that there was a great amount of negligence on the part of the Claimant in encountering these conditions and failing to exercise due care for his own safety and well being.

Under the doctrine of comparative negligence, which was adopted prior to this case going to trial, we find that the Claimant was 85% negligent and the Respondent was 15% negligent. Damages, for expenses, pain, suffering, disability, and lost wages and benefits are found to be $25,000.00. Therefore, the Respondent is liable to the extent of $3,750.00.

It is hereby ordered that the Claimant be, and hereby is, awarded the sum of $3,750.00


text:
    (No. 81-CC-0531
    Arden Shore Association, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 22, 1984.

    Boodel, Sears, Sugrue, Giambalvo & Crowley, for Claimant.
    Neil F. Hartigan, Attorney General (Mary Mulhern, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This matter comes before the Court relative to a deduction in the amount of $5,496.50 made by Respondent for services rendered by Claimant from March through July 7, 1977. This matter was tried upon a basic statement of facts between the parties hereto which was 13 pages in length.

Claimant alleges the above set forth amount was for services rendered in 1977 for which the Department of Children and Family Services (hereinafter called DCFS) paid in 1977, and then unilaterally deducted in 1979 from other payments due Claimant.

Claimant is a nonprofit charitable organization that provides residential treatment and special education to socially and emotionally disturbed children between the ages of 11 and 17. It accepts children in two ways, private placement, usually from the family, at which time private funds pay for the child’s stay at Arden Shore, and placement from Respondent, DCFS, for which public funds pay for services.

In 1976, pursuant to a contract, Claimant was to provide services to children that DCFS placed with it, and DCFS was to pay $42.50 per day for the child’s services.

The present case involves a young man named William Samuel Gerhardt. In the summer of 1976, the patient was confined to a psychiatric hospital. He was 13 years old. This patient had numerous behavioral problems, had run away from the house, was a truant, and had done some auto theft, drug abuse, and was very resistant to authority.

On July 1, 1976, the patient’s parents had placed him with Arden Shore. Although they were supposed to pay $12 per day, by September of 1976 they were in substantial arrearages and the patient was not making very much progress.

In September of 1976, DCFS agreed to pay Arden Shore for its treatment of the patient.

The sole question before the Court is whether the Claimant should be paid this $5,496.50 by DCFS for services they rendered, or should the DCFS be allowed to unilaterally deduct that amount for other services that were rendered in May of 1979.

We have to look at the facts to understand how this situation developed when the patient’s parents and DCFS agreed to have DCFS fund the patient’s stay at Arden Shore. They agreed, DCFS and the parents, that this would last until January 31, 1977, approximately four months.

Claimant was not informed of this agreement, as neither DCFS nor the parents told them. The first information they had relative to the agreement was in May of 1982 when it was included in the statement of facts upon which this claim is predicated.

As far as Claimant was concerned, this was a typical placement by DCFS, pursuant to its contract with DCFS, which contract provides that when DCFS places a child with Claimant, it is to submit a Form 903 within 10 working days of placement and to complete a service plan agreement which includes an individualized goal sort of plan for the child and also to identify the child’s caseworker at DCFS.

In October of 1976, DCFS sent this Form 903 to Claimant but it did not complete the service plan agreement nor did it give any goals for the child or identify the child’s caseworker.

Howard Harris, a group leader at Arden Shore, is an employee of Claimant. Claimant made a series of telephone calls to DCFS and wrote a letter in December of 1976 requesting the name of the caseworker who was to be assigned to the patient. There was never any response to the letter or telephone call and they were never informed what the goals were supposed to be.

According to the contract, Claimant was to send DCFS progress reports on the patient. Progress reports were not sent to DCFS because Claimant did not know what goals they were supposed to be dealing with nor did they know who to send them to because they were never informed by DCFS.

In March of 1977, Howard Harris, at the request of the patient’s parents, wrote a letter to DCFS, advising them of the patient’s projected release date which at that time had been moved to June of 1977. During the same month, the DCFS processed a Form 903 to stop payment, which meant they were going to cut off funding. It was never received by Claimant and the first they saw the Form 903 was in May of 1979, 26 months after it had been prepared.

On April 28, 1977, DCFS held a formal service appeal hearing on the patient, basically to consider whether they were to continue funding of the patient at Arden Shore. Claimant never received a notice of this meeting even though the rules provided that a notice be sent. This meeting was one of the key points in this case, it being Claimant’s contention they were not apprised of the type of meeting that was to be held. Mr. Harris, representing the patient’s parents, appeared at the meeting and the only reason he attended was that he had been informed by the patient’s parents that it was going to be an informal meeting to discuss the patient’s funding. This was one of the points stipulated to in the statement of facts.

There is some debate as to whether or not Mr. Harris was told it was going to be an informal meeting or if he assumed that, although no formal notice was ever given Claimant. Mr. Harris’ position is that he thought he was going to support the parents and their son and that they needed support at that time.

It is Claimant’s further contention that they were not apprised as to what this meeting was going to be about and they assumed it was going to be an informal meeting, sitting around and discussing the program, or lack of a program, concerning the patient. Claimant’s representative did not have any idea it was going to be a formal service appeal hearing and he didn’t know anything about funding since he is a group leader and has no knowledge where funds come from.

Claimant contends that if it had been notified of the hearing, he would have gotten together progress reports regarding the patient’s development. It is apparent the patient was having very serious disciplinary problems, such as vomiting on members of the staff on purpose, being disruptive, and threatening other students.

There is some dispute as to whether or not it was indicated at this meeting that Arden Shore was letting the patient’s payments “slide” until this hearing. Mr. Harris states that he never indicated that and, furthermore, he didn’t have any knowledge or authority over funding for students at Arden Shore.

Claimant emphasizes its position that failure to send a formal notice was a breach of contract between the parties.

The State continued to pay Claimant during this time and Claimant stated it would not throw the patient out on the street even if DCFS cut off his funding. Claimant states that if it had been advised by Respondent that there would be no further funding, it would have tried to secure the funds from some other source. Claimant emphasizes that in cases of this kind they have to secure the source of the funds in advance of providing services.

This settles down to the question of the amount of money paid from March 1,1977, to July 8,1977. At this point, the question arises as to why there was no deduction for the month of February. Oral argument indicated the State had voluntarily agreed with the parents to fund for that extra month so that is why there is no dispute over the same.

Claimant’s position is that this is a matter of contractual claim and that the contract was broken when Claimant did not receive any notice of the hearing that resulted in a determination of the claim. It is Claimant’s further contention that they performed the services they agreed to perform and, two years after they performed said services, the State with no explanation or warning, deducted the money from other payments due Claimant, and that is why this claim was filed.

It is Respondent’s position that approximately two months after the child arrived at Arden Shore, his parents signed an agreement with DCFS turning over custody of their son to DCFS. This is the agreement Claimant says it did not know was in existence until after the suit was filed. Respondent’s position is that some three months after the patient was sent to Arden Shore, Arden Shore was getting paid $42.50 per day by the State. The record discloses that DCFS entered into an agreement in July of 1976 with the parents of the boy and from that time on, DCFS became the financial source of payment to Claimant. Respondent acknowledges it did not send written notice to Arden Shore of the service appeal hearing where they were going to consider whether to continue funding the patient.

The Commissioner, in his report, stated the issues are as follows:

1. Whether the State is liable for the value of services rendered to a child who is not within the legal custody of the State.

2. Whether the State is liable for the value of services rendered to a child when Claimant’s contract rights are in direct conflict with a Department regulation promulgated pursuant to statutory authority.

3. Whether the State is estopped from raising a legal defense to the claim or seeking recoupment of funds improperly paid.

The DCFS acquired legal temporary custody and financial responsibility, pursuant to the voluntary agreement entered into with the parents of William Samuel Gerhardt, whereby DCFS assumed custody until January 31, 1977. The agreement stated that custody terminated after six months. After DCFS acquired temporary custody of the child, Respondent agreed to pay Claimant $42.50 per day. Claimant rendered services to the patient from October of 1976 to July 8,1977, and sent Respondent monthly vouchers for these services, which Respondent paid. In May of 1979, nearly two years after the child was discharged by Claimant, Respondent deducted $5,490.50 from its payment to Claimant.

It is Respondent’s contention that the April 28,1977, meeting was a formal service appeal hearing, Claimant insists it had no knowledge this meeting was to be a formal service appeal hearing and it received no proper notice from Respondent. It was the result of this meeting that Respondent decided not to continue funding for the child.

There is no question but that Claimant has fulfilled its obligation under the contract or that the services it is seeking to recover were received by the patient. Article 16 of the contract between the parties states that: “The parties agree to abide by the decisions made as a result of a hearing under the Department’s (i.e., Respondent) service grievance procedure attached as Exhibit E.” However, article 16 also states that: “The Agency (i.e., Claimant) shall have the right to notice, the right to be present, and the right to present evidence at a service grievance hearing.” The contract provides that notice is to be sent as follows: Arden Shore Association, Box 278, Lake Bluff, Illinois, 60044. Furthermore, section 6 of the Respondent’s service grievance procedure, attached as exhibit E to the contract, provides that Respondent’s director shall notify the applicant or recipient of the final decision by certified mail.

In this case, there is no dispute that Respondent not only failed to notify Claimant that a service appeal hearing was going to be held on April 28, 1977, it also failed to notify Claimant of the final decision until November of 1979 — two years after the hearing and two years after Claimant continued to render services to the child.

When Respondent opted to take advantage of the service appeal system to not continue funding the child, it became obligated to give Claimant notice of the final decision. Respondent’s failure to observe any of these obligations now prevents it from binding Claimant to the decision made as a result of the hearing.

The commissioner’s report also sets forth the question of estoppel. It is the Court’s opinion that the breach of contract, by failure to give proper notice to Claimant, was such a sufficient breach that no other basis for an award for Claimant is necessary.

It is the Court’s opinion that Claimant be awarded the sum of $5,199.00, which is the amount claimed less $297.50, or $42.50 per day for the seven days in July not covered by the contract.

An award is hereby entered in favor of Claimant in the amount of $5,199.00.


author: POCH, J.

text:
    (No. 81-CC-0857
    Patricia Shannon, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 29, 1984.

    Edward R. Vrdolyak (William J. McCann, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Lynn W. Schock, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

Claimant seeks recovery for property damages arising out of an accident on November 5,1979.

The incident complained of occurred at about 8:00 a.m. on November 5, 1979, while Claimant was driving her 1968 Chevrolet Malibu northbound on Burnham Avenue in the Village of Lynwood, Illinois. Claimant testified that when she turned on to Burnham Avenue, the road was full of potholes. As she started to hit the potholes, she reduced the speed of her car to between 30 and 40 miles per hour. At the scene of the accident she hit a pothole, which Claimant stated was approximately 1M to two feet wide and from three to four inches deep, losing control of the car, and after traveling about 10 yards, hit a culvert off the road. The car, for which she paid $500 about six months before the accident, was a total wreck.

Claimant testified that she was familiar with this location, having travelled over the road about 40 times during a period of two or three years prior to the accident and that the road was in poor condition.

Claimant, on cross-examination, testified that she saw the potholes and reduced the speed of the car but could not avoid the potholes. She further stated that oncoming traffic prevented her from going into the southbound lane and that it was too close to the gravel shoulder to straddle. However, from an examination of the photograph it appears that Claimant could have straddled it if she had seen it in time and had reduced her speed.

Respondent introduced in evidence an Illinois Department of Transportation memorandum, dated September 12,1980, taken 10 months after the accident. Said memorandum noted the Department had no record of a pothole at the location of the accident, nor any knowledge of any previous accidents at the scene of the accident, and that the Department had no record of repairing any potholes at the scene.

The police report taken at the time of accident did not indicate any road defects.

From the record there is no proof that Respondent had actual notice of the pothole, but from the condition of the road it had constructive notice.

It would appear that the failure of the State to maintain Burnham Avenue was a proximate cause of the accident, but Claimant’s failure to have her car sufficiently under control so as to straddle the pothole or otherwise avoid it was an equal proximate cause of the accident.

From the evidence before the Court, Claimant, under the doctrine of comparative negligence is entitled to an award. Alvis v. Ribar (1981), 85 Ill. 2d 1.

It is therefore ordered that Claimant be, and hereby is, awarded the sum of three hundred ($300.00) dollars.


author: POCH, J. Holderman, J.

text:
    (No. 81-CC-0874
    Patrick J. Carolan and Judith A. Stuewe, Claimants, v. The State of Illinois, Respondent.

      Opinion filed July 16, 1984.

      Order on motion to dismiss filed October 1, 1984.

    David P. Duff, for Claimants.

      Neil F. Hartigan, Attorney General (John J. Perconti, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This cause coming on to be heard on the joint stipulation of the parties hereto, the Court being fully advised in the premises, finds:

That this a personal injury action brought pursuant to section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1981, ch. 37, par. 439.8(d)).

On August 17,1980, Claimants were involved in an automobile accident after striking a bump on the 1-290 expressway at a point between First and Ninth Avenues, Maywood, Illinois.

It is hereby ordered that the Claimants, Patrick J. Carolan and Judith A. Stuewe, be and hereby are awarded the sum of twenty-five hundred dollars and no cents ($2,500.00), in full satisfaction of this claim.

ORDER ON MOTION TO DISMISS

Holderman, J.

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

Finds that the State of Illinois is not liable for the payment of interest in the absence of a statute subjecting it to such liability. No such statute exists for the payment of interest on tort claims.

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


text:
    (No. 81-CC-1042
    Deane Frye, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 22, 1984.

    Dwight L. Shoemaker, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This claim was brought by Deane Frye, Inc., against the State of Illinois for $2,750.00. Claimant contends the money is due for additional work performed at a State-owned building, and which was necessitated by certain conditions in and around the building not contemplated by the parties in the written contract.

The written contract entered into on November 20, 1979, called for payment of $20,500.00 to Claimant as the cost for the entire project. In April of 1980 it was discovered by Claimant that unforeseen circumstances concerning the building and other matters required modifications of the work contemplated by the written contract.

The Claimant proceeded to perform additional work which it valued at $4,250.00. Respondent paid $1,500.00 to Claimant which exhausted the appropriation for the project. A hearing was held on January 18, 1983, all briefs and the report of the commissioner are filed, and the matter now comes on for the Court’s decision.

There was much time devoted by the parties at the hearing and in the briefs to the questions of whether the additional work was necessary and whether it was done pursuant to proper authority from the Respondént. The Court agrees with the arguments advanced by the Respondent on the latter question.

It is uncontroverted that the $4,250.00 claim for the additional work exceeded the contract limit, and that after the payment of the $1,500.00 on that claim there remained no funds left in the project appropriation. Since there were no funds appropriated for the project sufficient to pay the full amount of the additional claim, there is no legal authority for its payment. Ill. Const. 1970, art. VIII, sec. 2(b); Ill. Rev. Stat., ch. 127, par. 166.

For the reasons discussed in Respondent’s brief, Claimant’s reliance on the doctrines of ratification and equitable estoppel is misplaced and cannot operate to defeat the clear intent expressed in the Constitution and by the General Assembly. The facts in this case, even when considered in a light most favorable to Claimant, do not demonstrate the kind of extraordinary affirmative conduct by Respondent and its employees which is necessary to estop the State in a case such as this where the project appropriation has been exhausted. Brokaw Hospital v. State (1982), 35 Ill. Ct. Cl. 231.

The Claimant’s estoppel argument must also fail for the reason that Claimant knew that the additional claim was in excess of the written contract amount, and as the State has demonstrated, Claimant did not follow proper procedures necessary to protect its claim. See Brokaw, supra.

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


author: Roe, C.J. Roe, C.J. Roe, C.J.

text:
    (No. 81-CC-1138
    Wilmer Agles, d/b/a Agles Bus Co., Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 19, 1983.

      Order filed September 17, 1984.

      Order filed December 13, 1984.

    Harry J. Sterling, for Claimant.
    Reed, Armstrong, Gorman & Coffey (John Gilbert, of counsel), for Respondent.
   Roe, C.J.

Claimant, Wilmer Agles, the sole proprietor of Agles Bus Company, brings this claim to recover for the value of bus services provided by Claimant to Southern Illinois University at Edwardsville (SIUE).

The factual situation surrounding the dispute between Claimant and SIUE is complicated because of the addition of third-party intermediaries not involved as parties to the suit. The three intermediaries are the R & G Transit Company (R & G), the Bank of Edwards-ville, and the Internal Revenue Service (IRS).

There are basically three business agreements among all the parties concerned prior to May 1980. First, SIUE needed bus service to provide its students with transportation dining the school year, so a contract for service was let for bids according to usual procedures. The contract was acquired by R & G. According to the contract R & G would service certain bus runs for SIUE in return for a definite total contract sum, payable in installments over the term of the contract.

The second business arrangement was between R & G and the Bank of Edwardsville. In order to fulfill its contract with SIUE, R & G needed money to finance busses. R & G therefore borrowed money from the Bank of Edwardsville, which took a security interest in the payments due to R & G from SIUE under the bus contract. This lien provided that the monthly payments received from SIUE would be sent directly to the Bank of Edwardsville. The Bank of Edwardsville would deduct its loan payments and then deposit the balance of the money in R & G’s bank account.

The third business arrangement was between Agles and R & G. Agles occasionally did subcontract work for R & G. Agles would provide bus service for R & G on several of the SIUE runs and be paid a flat fee of 91 cents per mile for each run. There was, however, no written contract between Agles and R & G. R & G would contract with Agles on a need basis — i.e., when a bus broke down R & G would call Agles and ask them to perform a run. Agles could either accept or decline. Apparently this method of substitution is common among bus companies, especially in instances of mechanical breakdowns; and this arrangement was particularly convenient for R & G, since Agles had in the past held the SIUE contract and was familiar with the runs. It was also convenient since R & G frequently needed help. This arrangement was known to and acquiesced in by SIUE. Harry Lutz, director of auxiliary services at SIUE, testified that he frequently called R & G to correct some difficulty and was told that Agles was handling the run on that particular day. Mr. Lutz then dealt directly with Agles. According to Mr. Lutz’ testimony, it did not matter who provided the service as long as the service was provided.

These arrangements worked smoothly until May of 1980, when R & G fell approximately $900.00 behind in its payments to Agles. At this point Agles refused to provide any more bus services for R & G. This refusal directely affected SIUE, since Agles was by now being called upon by R & G to provide regular runs for the financially ailing R & G. After several days without bus service, Harry Lutz called Agles to find out what the problem was. Agles informed Mr. Lutz that R & G was $900.00 behind in its payments and that because of nonpayment Agles would not furnish any more busses to R & G for the SIUE runs. Frances Hynes, the secretary for Agles, testified that Mr. Lutz then asked whether Agles would provide bus service if SIUE guaranteed the payments. Mr. Lutz, on the other hand, testified that he asked whether Agles would be more receptive to helping R & G with the bus service if Agles had reasonable assurance of payment, though it is apparent from Lutz’ testimony that he did not recall the exact wording of the conversation. In either case it was clear that Agles would not provide bus services to either R & G or SIUE unless the $900.00 was paid. Mr. Lutz therefore instructed Ms. Hynes to send the bill to John Hunter at the Bank of Edwardsville. Ms. Hynes, following Mr. Lutz’ instructions, sent the bill addressed as follows: “R & G Transit, care of the Bank of Edwardsville, John Hunter”. After a second billing, Agles received a Bank of Edwardsville check, paying the bill in full.

Thereafter, Mr. Lutz called again and requested service of Agles. Ms. Hynes replied that now they would be happy to service the SIUE runs. Acting on this request, Agles provided bus service from May 14 through June 6,1980, and billed SIUE through the Bank of Edwardsville in the same manner as previously done, although nothing more was paid to Agles. The total bill reached $4,878.09 and constitutes this claim.

After waiting 30 days until the bill became past due, Frances Hynes then called Mr. Hunter at the Bank of Edwardsville to inquire into payment of the bill. Mr. Hunter told Ms. Hynes that the bill was not paid because there was no money in the account, and he suggested that she call Mr. Lutz. Mr. Lutz explained that the reason there was no money in the account was that the account was R & G’s account and that the IRS had placed on the account a lien which had to be satisfied before all other claims. Therefore, instead of the monies passing through the R & G account and going to Agles, SIUE had honored the lien and paid the money over to the IRS. After the original $900.00 had been paid to Agles, Lutz had instructed the bank to determine whether R & G had any money in its account. If there was money in the account, the bank would then call R & G and inquire if the bill should be paid. If R & G authorized the transfer, then the money would be disbursed on a check issued by the Bank of Edwardsville. R & G had authorized the first transfer of funds, but, since the IRS levy had depleted the R & G account, there were no longer any funds which R & G could authorize to pay the subsequent billings, and the system broke down.

There is no question that under normal business conditions an enforceable contract existed between Agles and SIUE. Harry Lutz was in charge of transportation for the campus. He had on previous instances dealt directly with Agles Bus Company. It is apparent from all the testimony that, if there was a transportation problem at SIUE, Harry Lutz was the person to contact. In every aspect Harry Lutz had at the very least apparent authority to contract for bus services. Lutz contracted a subcontractor, Agles, and gave assurance that the overdue bills of the contractor, R & G, would be paid. Payment was then made by check issued, not by R & G, but rather by a third party, the Bank of Edwardsville. Lutz then requested that Agles provide bus service for SIUE. Agles provided the service, and SIUE accepted the bus service. SIUE argues that its actions were proper since its agent was simply renewing the subcontractor’s agreement between Agles and R & G. This argument is not persuasive. There is nothing in the record which indicates that SIUE was given any authority to bargain for R & G, and Harry Lutz was dealing directly with Agles on his own, not with Agles through R & G or at the request of R & G. Lutz therefore requested services from Agles. Agles provided these services directly to SIUE, but SIUE chose to make payments via R & G’s account without advising Agles of this payment procedure. Unfortunately for both parties, this method of payment was interrupted by the IRS. While SIUE may argue that Agles’ method of billing indicated that Agles accepted the subcontractor’s agreement, Agles’ method of billing was in fact following the request of SIUE for the convenience of SIUE and not as an acceptance of a subcontractor’s role. It is probable that Agles believed he was being paid directly by SIUE and that he was being paid from funds once but no longer earmarked for R & G, especially considering SIUE’s failure to fully disclose its method of payment. If there is a mistake in material fact with respect to a contract, and one of the parties knew or should have known of the ambiguity but did not disclose the ambiguity to the other party, the party that fails to disclose is bound by the mistaken party’s interpretation. (Stone v. Those Certain Underwriters At Lloyds, London (1980), 81 Ill. App. 3d 333, 401 N.E.2d 622). Since all of the other terms of the contract could easily be implied from the previous dealings and, since Agles did in fact perform to those specifications, and since SIUE did in fact accept those services, a valid contract arose between Agles and SIUE.

Respondent, however, argues that the contract is not enforceable on several grounds because of the fact that SIUE is not a private party but rather an entity of the State government. The first theory in support of this argument proposed is alternatively one of estoppel or invalidity of an implied contract. Respondent’s position is that, since Agles had done business with SIUE before, Agles knew that the usual procedure involved in dealing with a State entity is to secure a written contract which has been let for bids and processed through the purchasing department. Therefore, Agles should have known that this was not the proper procedure for contracting with SIUE. It is also argued that Agles had knowledge of the fact that implied contracts with State entities are disfavored under Illinois State law. Both points would have merit under normal circumstances. The circumstances in this situation are not, however, normal circumstances. A review of the facts indicates that SIUE was placed in what can be termed an emergency situation. Bus service for students is a necessary service to an institution such as SIUE. In a situation such as the one at hand, the normal rules of contracting with the university would require too much time. That such circumstances necessitate special rules is well recognized by this court, which has on several occasions sanctioned both oral and implied contracts entered into by State entities when the services provided were of an emergency nature. Nile Marriot Inc. v. State (1973), 28 Ill. Ct. Cl. 351; Elevator Manufacturing Co. of America v. State (1959), 23 Ill. Ct. Cl. 98; Patenberg & Patenberg v. Department of Public Works & Buildings (1969), 27 Ill. Ct. Cl. 1.

The policy reasons behind these rulings are as strong as they are obvious. The Court of Claims recognizes that expenditures are not always foreseeable and that emergency situations do arise. If State entities are to be in a position where they can handle emergency situations, they must not be burdened with a rule which routinely disallows claims for reimbursement. If this were the situation, clearly no businessman would provide emergency services for the State. This could lead to an extremely dangerous position in case of emergencies, a position which would be contrary to public policy.

The second argument Respondent makes is that, even if this were an emergency situation, Harry Lutz did not have the authority necessary to make a contract with Agles. Lutz denies that he had the requisite authority. This point has some merit and must be carefully examined.

While neither side in this case fully discusses the ability of a person with apparent authority to contract, it is a point of serious consequence when dealing with State entities. Clearly the State cannot be bound by agents with apparent authority rather than actual authority in most situations. Such a policy could be disastrous to the State’s budget. On the other hand, it is not clear either from the briefs of counsel or from case law whether a university employee is to be treated in the same manner as a normal State employee. People ex rel. Board of Trustees of University of Illinois v. Barrett (1943), 382 Ill. 2d 321, 46 N.E.2d 951, suggests that university employees should be treated as normal corporate employees. Hoffman v. Yack (1972), 57 Ill. App. 3d 744, 373 N.E.2d 486, on the other hand, suggests that university employees should be treated as normal State employees. While the Court finds it is not necessary to decide this issue at this time, it is necessary to point out that, even if the second view is the correct view and actual authority would be necessary because of budgetary considerations, the policy argument behind the budgetary considerations is not threatened by the factual situation in this case. In the case at hand the budget committee had already allocated funds to provide bus service in this instance. Those funds were paid to R & G and later claimed by the IRS. However, if SIUE mistakenly paid over funds to R & G for services that were not rendered by R & G, then SIUE has an adequate remedy for the recovery of that sum from R & G. Even if that remedy is now illusory, it should be pointed out that the problem here should not have been allowed to develop this far. This is not a situation where a State official has spent funds that were not appropriated. Clearly the funds were appropriated to provide bus service.

This court has previously held that, under certain circumstances when a State entity induces an individual to perform services for its benefit and when it accepts those services with knowledge of the failure to conform to the legal technicalities, the Court of Claims may grant an award for compensation. (Kent v. State (1978), 32 Ill. Ct. Cl. 471; Volland v. State (1939), 10 Ill. Ct. Cl. 715.) Furthermore, in emergency situations the State is bound by the contracts entered into by those with apparent authority in such situations, since it is obvious that the only actual authority is in the hands of the purchasing departments rather than in the hands of the individuals who authorize the work. Nile Marriot Inc. v. State (1973), 28 Ill. Ct. Cl. 351; Elevator Manufacturing Co. of America v. State (1959), 23 Ill. Ct. Cl. 98; Patenberg & Patenberg v. Department of Public Works & Buildings (1964), 27 Ill. Ct. Cl. 1.

For the reasons stated above, the Claimant is hereby awarded $4,878.09.

ORDER

Roe, C.J.

This cause comes on to be heard on the Court’s own motion, and the Court being advised;

On February 14, 1984, a supplementary order was filed in this matter ordering the Respondent to provide the Office of the Clerk of the Court of Claims certain information within 30 days. Said time has come and gone and nothing has been filed.

The information ordered to be produced related to payment of an award made by this Court nearly one year ago. Specifically, we want a description of the fund out of which this claim would have been paid had it not been filed here and contested, including the name of the fund, its number, and if a nonappropriated account, then a brief description of how the fund operates.

The Court does not desire to issue subpoenas to obtain this information but will do so if necessary. We will grant, and it is hereby ordered that the Respondent be and hereby is given, an additional 14 days within which to supply the information.

ORDER

Roe, C.J.

This matter is before the Court following the Respondent’s filing of a response to our Order of September 17,1984.

On October 19, 1983, we rendered an opinion awarding the Claimant $4,878.09. In order to facilitate payment we ordered the Respondent to provide us with the name of the account out of which this payment should have been paid, the account number, and, if a nonappropriated account, then a short description of how the account operated. The following information was provided. The account is entitled Transportation Service Cash and is numbered 06-84-7-93454. It is a local account funded by fees.

Ordinarily awards made by this Court are paid with funds appropriated for that purpose by the General Assembly. This is because most claims are made against funds previously appropriated by the General Assembly or arise out of transactions for which the General Assembly makes appropriations. In the case at bar, but for the breach of the contract, the payments would have been made out of the above described local account. Nothing in the record shows that the General Assembly has any direct control or oversight as to that account. It seems to us that the Respondent university is capable of and should pay the judgment we rendered directly out of that account forthwith.

Accordingly, it is hereby ordered that the Respondent pay the aforesaid judgment as soon as is reasonably practical.


text:
    (No. 81-CC-1182
    Chicago Child Care Society, Claimant, v. The State of Illinois, Department of Children and Family Services, Respondent.

      Opinion filed August 22, 1984.

    Mandel, Lipton & Stevenson, Ltd., for Claimant.
    Neil F. Hartigan, Attorney General (Mary Mulhern, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This case involves the expenditures for services given to the child of a 14-year-old mother, Djuna Shaw. The child, David Shaw, was born on February 14,1978, at Cook County Hospital. On February 14,1978, Djuna Shaw signed an agreement requesting Claimant to place her baby in one of Claimant’s boarding homes. Because of a serious medical condition, the child was kept at the hospital until February 28,1978, at which time Claimant accepted custody and moved him to one of its foster homes.

On March 31, 1978, the mother appeared before Judge Harry Comerford of the Cook County Circuit Court, County Division, and executed a final and irrevocable surrender for purposes of adoption, granting all custody and parental rights over her child to Claimant.

David was not gaining weight properly, and on April 12, 1978, Claimant hospitalized him at Mercy Hospital. He suffered from a disease which made it impossible for him to gain weight, so at the time of his hospitalization, he weighed less than when he was born. His condition ruled out adoption as an immediate option, and since Claimant had a voluntary consent from only one parent for that purpose, it “initiated planning for David as a dependent child.”

The question of who was to pay for the hospital and medical expenses of the child was the subject of the entire hearing. The Court calls attention to the fact that the commissioner’s hearing report consisted of 34 well-written pages.

Claimant takes the position that it had entered into an oral contract with Respondent to take and care for the child and that the medical expenses that were incurred during the time of determination as to who would be responsible for the care of the child would be paid by Respondent.

Respondent takes the position there was never any valid contract entered into, that it never had custody of the child, and that custody at all times remained with Claimant.

The record consists largely of conversations between Claimant and the Department of Children and Family Services (hereafter called DCFS). To say the least, the evidence is quite contradictory. Telephone communications at some length were introduced into the record, Claimant trying to establish its conclusion that an oral contract was entered into, and Respondent using evidence to the contrary.

In the final consideration of this case, two Illinois statutes must be considered: The Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, pars. 701-1 through 708-4), and the Department of Children and Family Services Act (Ill. Rev. Stat. 1977, ch. 23, pars. 5001 through 5040). Certain rules and regulations of the DCFS must also be considered.

Claimant also claims that under the doctrine of estoppel its claim should be allowed. A recent Second District Illinois Appellate case defines estoppel as follows:

“Estoppel refers to reliance by one party on the word or conduct of another so that the party changes his position and subsequently suffers harm. (Veno Co. v. Stoner (1982), 108 Ill. App. 3d 51, 55, 438 N.E.2d 933). It arises whenever one by his conduct, affirmative or negative, intentionally or through culpable negligence, induces another to believe and have confidence in certain material facts, and the latter having the right to do so, relies and acts thereon, and is as a reasonable and inevitable consequence, misled, to his injury.” (Allstate Insurance Co. v. Horn (1974), 24 Ill. App. 3d 583, 588, 321 N.E.2d 285.) Estoppel must be proven by clear unequivocal evidence.” Wilson v. Illinois Benedictine College (1983), 112 Ill. App. 3d 932, 939, 445 N.E.2d 901, 908.

The record does not establish any set of facts on which an estoppel might be based. A preponderance of the evidence is that from the earliest date forward, Claimant knew DCFS was taking the juvenile court route rather than the voluntary placement agreement route, and that therefore the referral was subject to Court approval, which was never obtained.

The Court, having read the record, exhibits and briefs, does not find any theory upon which Claimant can recover.

Claimant’s claim for an award is hereby denied and said cause is dismissed.


author: Raucci, J.

text:
    (Nos. 81-CC-1512, 82-CC-0448 cons.
    Florence Crittenton Peoria Home, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 9, 1985.

    Heyl, Royster, Voelker & Allen, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This case arises from a claim against the Department of Children & Family Services for services rendered by Claimant in the prebirth and afterbirth care of young pregnant women and the care of temporary State wards during 1980 and 1981. The Respondent contends the services were unauthorized. The Claimant seeks recovery for services rendered to 19 young women during the period January 1980 through March 1981. Most of the services were for afterbirth care, although some were prebirth, and one for care of a State ward. The amount of recovery requested is not in issue.

During the period of July 1980 through March 1981, the Claimant rendered services to each of the 19 women. 'Each was referred to the Claimant through the usual direct purchase or reverse purchase intake system and the Respondent paid the Claimant all or at least part of the prebrith care or daily fees due upon the services rendered to these women. In one case, the Respondent paid for some aftercare. Two cases did not involve any aftercare. The Claimant submitted vouchers for payment of its services in all of these cases as required by the Respondent.

The record discloses that the intake of clients by the Claimant under the contracts with the Respondent can occur in one of two ways. Under a direct purchase of services, the Respondent initiaties placement of the client and the purchase of services from the Claimant. Under a reverse purchase system, the client comes to a private agency, the private agency refers the client to the Claimant and the private agency initiates the request for the purchase of care from the Respondent. All but two women involved in this case represent reverse purchase cases. The private agency is responsible for performing the necessary paper work to make the placement, using a Respondent’s form called “a referral for purchase of care for an unwed mother”. This is the form with which the Respondent approves or disapproves the initial purchase of services. The Respondent shows its approval by sending the private agency a Form PRO-212. With respect to each of the reverse purchase agreements in this case, the Respondent did approve the purchase of care request with a Form PRO-212. On the “referral for purchase of care for an unwed mother” form, there has been a statement since 1980 which reads,

“Any assistance for living arrangements will be terminated the day of delivery unless a new CFS 940-1 is submitted and approved.”

In the afterbirth care cases involved here, a new CFS 940-1 was never sent to the Respondent by the private agency. The Claimant itself has no responsibility for paper work with the Respondent except to send it vouchers for payment. State forms can only be sent in through licensed welfare agencies, which do not include the Claimant. The Claimant does not have the responsibility for these forms nor does it have the requested forms in its possession.

The Claimant was never informed by either the Respondent nor by the private agencies that the Respondent would not pay for afterbirth care services for the women involved in this claim. It appears through testimony that the Claimant was informed by the private agencies that the Respondent would be paying for the care. Further testimony by the Respondent’s witnesses showed that the Respondent was aware that the Claimant provided afterbirth care to women, that they never notified the Claimant about the necessity of the CFS 940-1 form, that these forms were never sent to the Claimant for completion, that the Claimant was not responsible for filing the forms, and the Respondent did not expect the Claimant to file said forms.

The record supports the Claimant’s position.

It is therefore ordered that Claimant is awarded $7,398.99 in full and complete satisfaction of these two consolidated claims.


author: Roe, C.J. Roe, C.J.

text:
    (No. 81-CC-1748
    David Umbaugh, Claimant, v. Board of Trustees of Southern Illinois University, Respondent.

      Opinion filed September 7, 1984.

      Order filed March 11, 1985.

    Thomas Gumbel and Barbara C. Gumbel, for Claimant.
    Neil F. Hartigan, Attorney General (Ronald D. Lowery, of Reed, Armstrong, Gorman & Coffey, and Shari Rhode, of Southern Illinois University, of counsel), for Respondent.
   Roe, C.J.

This case arises out of a breach of contract action filed by the Claimant, David Umbaugh, against the Board of Trustees of Southern Illinois University, alleging that the University did not give Claimant proper notice prior to termination as required by his employment contract.

The Respondent, Southern Illinois University, argues that, while it did not give the Claimant six months’ written notice as required by his employment contract, it did give him six months’ “constructive” notice or, in the alternative, that the Claimant failed to mitigate his damages.

Claimant was employed as a visiting lecturer at Southern Illinois University at Ed wards ville from September 1, 1977, through June 30, 1978, and again from July 1, 1978, through May 31, 1979. The Claimant was also given a contract for employment for the summer of 1979. It is upon this latter contract that Respondent bases its argument concerning constructive notice. According to the terms of all Claimant’s contracts, Claimant was hired to teach and serve as tutor to students in biology and chemistry. The contracts stated in part:

“A lecturer is a faculty member in a temporary or non-regular rank and shall normally be appointed for no longer than one academic year. The appointment may be renewed annually but if there is uncertainty about reappointment following his second or subsequent year of employment, he shall be given written notice no less than six months preceding the termination of his appointment."

Respondent does not dispute that this section is applicable to the Claimant nor does Respondent dispute the fact that the Plaintiff was not given six months’ written notice.

Respondent argues that, although Claimant was never notified in writing that his position was being terminated, the Claimant by his own admission knew that his position “might be terminated” as early as April or May of 1979. Respondent also points out that during discussions with university officials Dr. Jason and Dr. Morgan in April and May of 1979, Claimant had argued that it was not fair to leave him uncertain about his summer employment, especially if funding for the university did not allow Respondent to rehire Claimant in the fall. Since Claimant was as a result given a two-month summer contract, Respondent argues that it is reasonable that Claimant knew that, when he accepted the two-month summer contract, he would not be reappointed in the fall of 1979 and that the two-month contract was either in settlement of his six-months’ notice requirement or the beginning of the six-months’ notice period.

Testimony by the Claimant strongly indicates that he never made any settlement agreement with university officials concerning the two-month summer appointment and that he only believed he “might” be terminated. There has been no contradictory testimony indicating that the Claimant was ever directly told he would be terminated or that the two-month appointment was in return for waiving the six months’ notice requirement. While Dr. Jason testified such was his understanding, neither he nor any other university official admitted to specifically informing Claimant that he was being terminated or that the two-month appointment was in settlement of the six-months’ notice requirement. Furthermore, the record indicates that on July 7, 1979, Claimant was sent a letter by Dr. Jason stating that Dr. Jason was recommending Claimant for a $100.00 per month raise for fiscal year 1979. This letter is clearly inconsistent with Respondent’s argument that Claimant should have known he was being terminated.

Given these facts, it is apparent to the Court that Respondent has created a situation which is clearly inconsistent with both the specific language and the intent of the contract. Respondent has admitted it wrote the contract. Included is a clause which states unambiguously that the Claimant is entitled to six-months’ written notice. The clear intent of this clause is to provide protection for Claimant so that he would know definitely whether he was to be included in the future employment plans of the university. Respondent’s failure to strictly adhere to the terms of the contract created a situation which the contract was designed to prevent. The Court therefore finds that Respondent has breached the contract.

A wrongfully discharged employee must act to mitigate his damages by seeking similar employment, and his damages will be reduced by those sums which he earns or could have earned through the exercise of reasonable diligence in seeking employment. (Schwarze v. Solo Cup Co. (1983), 112 Ill. App. 3d 632, 445 N.E.2d 872.) Furthermore,where a contract for employment contains provisions for termination upon a certain period of notice, damages for wrongful termination of employment are limited to the nearest date at which the employer could rightfully exercise this privilege. United Protection Workers of America Local No. 2 v. Ford Motor Co. (7th Cir. 1955), 223 F.2d 49.

Given the terms of the contract, Respondent could have rightfully discharged the Claimant six months after he was given written notice. Since all of the testimony indicates that the Claimant was never given any written notice, Claimant was denied the six-month period of employment during which he could search for another job. Claimant, however, is limited to damages incurred during that six-month period from the date of termination. According to all testimony, this period would include the six months from August of 1979 to January of 1980.

It is uncontested that Claimant was unemployed during this entire period. The question, therefore, is whether Claimant used reasonable diligence in mitigating his damages. Claimant has introduced an exhaustive list of places to which he applied for jobs during this period without success. Respondent does not directly attack the authenticity of the Claimant’s application but rather argues that it offered Claimant a contract for employment at the university for four months beginning in January of 1980. Respondent argues that this contract should be applied as against four months’ damages. The Court disagrees.

Claimant was unemployed for the months of August 1979 through December 1979 before the Respondent offered him a job. Claimant could not recover the lost wages for these five months without forfeiting his right to work elsewhere from January of 1980 to March 1980. Those five months of earnings were, therefore, lost to him forever. The month of January, however, must be considered separately from the first five months.

Respondent offered Claimant a four-month contract for January of 1980 through March of 1980. Respondent is therefore correct in alleging that Claimant did not mitigate his damages for the month of January. However, Illinois courts have held that a reemployment situation is an exception to the general rule of mitigation of damages, and depending upon the substance of the offer and circumstances under which the offer is made, wrongfully discharged employees need not always accept the offer or be precluded from seeking damages. (Schwarze v. Solo Cup Co. (1983), 112 Ill. App. 3d 632, 445 N.E.2d 872.) Dr. Emil Jason testified that the salary for the four-month contract was the same as the Claimant’s previous contract. Claimant testified, however, that salary was never discussed, that he was given one day to accept the position, that there was no course curriculum, that there was no student list, that there were no textbooks, that there were no lab instruments, that he had never taught a laboratory course, and that in general the duties were unlike those which he had previously performed. Respondent did not dispute any fact except the salary.

Illinois courts have recognized that equal salary alone is not enough to force an employee to accept an offer of reemployment if the new contract constitutes a disadvantageous renegotiation of the original contract. (Schwarze v. Solo Cup, id, at 876.) It is the opinion of the Court that the dramatic change in duties of the proffered contract substantially changed the terms of the original contract. Had Claimant accepted the contract at such a late date with so little organization, Claimant likely would have been forced to expend a great deal more effort to teach a substandard course, thereby damaging his reputation. The Court therefore finds that Claimant was not obligated to accept the contract.

It is agreed that Claimant was earning $1400.00 per month. He is entitled to damages in the amount of six months’ salary. It is also agreed that the Claimant is entitled to 16 11/12 vacation days. The Court computed this figure to equal $1076.73 in wages. For the reasons stated herein, the Claimant is hereby awarded the sum of $9,476.73.

ORDER

Roe, C.J.

This matter is before the Court on the Court’s own motion and the Court being fully advised;

This is a claim for breach of an employment contract against the Respondent’s Board of Trustees of Southern Illinois University (Edwardsville). On September 7, 1984, the Court rendered an opinion in favor of the Claimant awarding him $9,476.73.

Section 24 of the Court of Claims Act (111. Rev. Stat. 1983, ch. 37, par. 439.24) provides the authorization for the Court to direct immediate payment of certain claims. With respect to breach of contract claims, the Court is only authorized to direct immediate payment where the award made is less than $2,500.00. If an award in such a case exceeds that amount it is customary for the Court to advise the legislature of the claim and seek an appropriation to fund the award. In appropriating funds for awards, it is the intention to make the money payable out of the fund from which the debt would have been paid had it not come to the Court of Claims.

In the case at bar the Claimant would have been paid entirely with Federal funds. These funds expired or otherwise became unavailable on June 30,1980. Nothing in the record indicates that the Respondent made any provision to retain or reserve any of these funds for the contingency of this claim. Therefore it will not be possible for an appropriation to be made for the award out of the funds from which the Claimant would have been paid but for the breach of the contract.

The award in this case is in excess of $2,500.00. It will have to be presented to the legislature for payment. It is our recommendation, in cases such as this, where a breach of employment contract is involved, that the claim be paid out of the Respondent’s general revenue fund.

We further note that the Claimant testified to having received unemployment compensation from September 1979 to February 1980. The award for back wages was made for the six-month period of time from August of 1979 to January 1980. Pursuant to section 900D of the Unemployment Insurance Act (Ill. Rev. Stat., ch. 48, par. 490D) any award herein should be made payable to the Claimant and to the Director of the Department of Employment Security.


text:
    (No. 81-CC-1839
    Melvin Williamson and Mary Lisa Christian, Claimants, v. The State of Illinois, Respondent.

      Opinion filed July 11, 1984.

    Vitell, Greenfield, Johnson, Goldstein & Gubbins, Ltd., for Claimant.
    Neil F. Hartigan, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This matter comes before the Court upon the joint stipulation of the parties, which states as follows:

1. That the instant claim arose from an automobile accident on the Stevenson Expressway in Chicago, on February 19,1979.

2. That Claimant Melvin Williamson was the driver of the vehicle in question, and Claimant Mary Lisa Christian was the passenger.

3. That contemporaneous with the filing of the instant stipulation, Claimant Mary Lisa Christian has filed a motion for voluntary dismissal of her claim.

4. That said motion leaves Melvin Williamson as the sole Claimant in the instant claim.

5. That after careful consideration of the issues and facts pertaining to the instant claim, as well as the potential time, preparation and expense of litigation and its possible outcome, the parties have agreed to settle the claim for the sum of $7,500.00.

6. That this amount is offered by Respondent and accepted by Claimant as full, complete and final satisfaction of the instant claim or any other claim arising out of the accident in question.

7. That there are no disputes of fact or law between the parties.

8. That both parties waive hearing, the submissionn of evidence and the filing of briefs.

9. That both parties have entered into this stipulation with full knowledge of all facts and law relating to the claim, and feel that an award in the amount agreed upon is a fair and reasonable sum, and that the granting of such an award would be in the best interests of all concerned.

Although the Court is not bound by a stipulation such as this, it is also not desirous of interposing a controversy where none appears to exist. As long as the stipulation appears reasonable and fair, we see no reason to question its validity or to force the parties to take the time and expense of proving facts which are not in dispute.

We find the stipulated facts to be sufficient to sustain a finding of liability on the part of Respondent and an award in the agreed amount.

Claimant is hereby awarded the amount of $7,500.00 (seven thousand five hundred dollars and no cents).


text:
    (No. 81-CC-1998
    Jerry Bauer, M.D., S.C., Claimant, v. The State of Illinois, Respondent.

      Order on motion for summary judgment filed May 23, 1983.

      Opinion filed December 10, 1984.

    Epton, Mullin, Segal & Druth, Ltd. (Jeffrey Sanchez, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.

      Roe, C.J.
   OPINION

Roe, C.J.

This is a claim by a physician for payment for medical services provided a minor child, which minor child was in the care, custody, and control of the Illinois Department of Children & Family Services. The parties stipulated to the facts, filed cross-motions for summary judgment and memoranda in support thereof, and the Court has heard oral arguments.

The facts stipulated are as follows:

1. At all times relevant hereto, the Illinois Department of Children & Family Services (hereinafter the Department) had care, custody and control of the minor child, Kristopher Ivy.

2. Claimant, Jerry Bauer, M.D., a licensed physician and neurosurgeon, provided medical service to Kristopher Ivy during the period of June 16, 1980, through January 19, 1981. His initial services, namely operation and follow up, were rendered on an emergency basis. His services were later authorized by the Department.

3. Claimant performed a series of surgical procedures (summarized in an exhibit attached to this stipulation) on Kristopher Ivy during the period of June 16,1980, through January 19, 1981, for which he billed the Department a total of $7,670.00.

4. Claimant is affiliated with the University of Illinois Hospital where he teaches and cares for patients, not under the Illinois Department of Public Aid, or the custody of the Department, and he had no knowledge that the patient was under the care or custody of the Department when he first began to perform surgery and otherwise perform services for the patient.

5. The fee schedule Claimant used to bill the Department for the services provided to Kristopher Ivy is comparable to the fee schedule used by the University of Illinois Hospital which was attached to the stipulation as an exhibit.

6. The fee billed to the Department for the services provided to Kristopher Ivy is lower than Claimant’s usual and customary fee for the same services.

7. The Department has made payments to the Claimant which total $745.00 for the medical services he provided to Kristopher Ivy.

8. The IDPA-MAP pricing index authorizes a total fee for the surgical procedures and related services here at issue of $1,324.00.

By Order of this Court dated May 23, 1983, we awarded the Claimant $579.00, that amount having been found to be undisputedly owed. Thus the amount in controversy has been reduced to $6,346.00.

Having reviewed the record and considered the arguments, we find the issue to be whether or not the State can, in the absence of law or contract, unilaterally and retroactively impose a limitation on which is undeniably reasonable compensation for medical services rendered, and largely services of an emergency nature at that. No other defense was offered by the Respondent to limit the compensation due the Claimant other than urging us to apply rules which took effect after the services were rendered. This we will not allow.

As for the compensation sought, the only evidence is that the Claimant is affiliated with the University of Illinois Hospital where he teaches and treats patients, that his fee schedule is comparable to that used by said hospital, and that the amount billed was lower than Claimant’s usual and customary fee for the same services.

It is hereby ordered that the Claimant be, and hereby is, awarded the sum of $6,346.00.


text:
    (No. 81-CC-2188
    David Spears, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 18, 1984.

    David Spears, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This claim arises from personal injuries suffered by Claimant while he was an inmate at the Graham Correctional Center in Hillsboro, Illinois.

At the hearing before Commissioner Robert J. Hillenbrand on July 13, 1982, Claimant testified that on March 10, 1981, he was an inmate at the Graham Correctional Center, and at the time of the accident he was doing cleanup work in the kitchen. His general duty was a pot washer. At about 6:45 p.m., as he finished his duties, the supervisor noticed that the meat slicer had not been cleaned by the cooks. Claimant was ordered by the supervisor to perform this task. Claimant further testified that he was not instructed by the supervisor as to how to clean the meat slicer prior to the time he began the work. The meat slicer was partially disassembled but not entirely, as it should have been.

While Claimant was cleaning the meat slicer, he cut his finger on a sharp blade and he was taken to the hospital where he received medical treatment for his finger. Claimant had not suffered permanent injury to his finger, but does feel some pain from time to time. Medical expenses were paid by Respondent.

William Wright testified for the Respondent that he was a food supervisor on duty at the time of the incident but was not in the vicinity at the time the Claimant was told to clean the slicer. Therefore he could not testify as to whether the Claimant was instructed as to how to clean the slicer. He did testify that the policy is to show the inmates how to use the equipment and clean it when they are not familiar with it.

The Respondent introduced into evidence the accident report filed by William E. Beard, the food supervisor on duty at the time of the accident. The report stated that Claimant volunteered to clean the meat slicer and that Claimant was warned that the meat slicer was very sharp.

The Respondent also introduced into evidence the internal memorandum of Kenneth McGinnis, warden at Graham Correctional Center. It states that Claimant told food supervisor Beard that he was familiar with the cleaning of the meat slicer.

An examination of Beard’s actual statement, however, indicates that while Beard said he warned Claimant that the machine was sharp, Beard never stated that he gave any instructions to the Claimant. Furthermore, the statement does not indicate that the Claimant told the supervisor that he was familiar with the cleaning aspects of the meat slicer.

Claimant has, in the opinion of the Court, proven that he was not instructed as to how to clean the meat slicer. Such omission on the part of the Respondent amounts to negligence.

The Court finds from the evidence that the State through its agents was negligent and that Claimant is entitled to an award.

An award is, therefore, entered in favor of Claimant in the amount of one thousand ($1,000.00) dollars.


text:
    (No. 81-CC-2344
    Public Electric Construction Company, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 10, 1985.

    Gottlieb & Schwartz (Audrey Holzer Rubin, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This is a claim brought by Public Electric Construction Company, Inc., an Illinois corporation, against the State of Illinois, Capital Development Board, for damages alleged to have resulted from unreasonable construction delays in connection with electrical work performed by Claimant for Respondent at the Gompers Elementary School, Chicago, Illinois, in 1979-80.

On January 18, 1979, Claimant entered into a contract with Respondent to perform electrical work at Gompers Elementary School for the sum of two hundred thirty one thousand three hundred twenty four ($231,324.00) dollars with the work to be completed on or before January 18, 1980. The work was actually completed on May 5,1981.

Procedurally, this Court granted Claimant’s motion for summary judgment as to liability only on November 8, 1983, and further barred Respondent from defending this case for failure to comply with discovery orders on February 2,1984. On May 24,1984, this case came to be heard before Commissioner John P. Simpson, solely on the issue of damages. The Respondent did not call witnesses, question Claimant’s witnesses, introduce exhibits or argue the matter before the commissioner.

It is uncontroverted that there was a delay of 341 days due to the fault of the State of Illinois. The Claimant is seeking costs which were incurred over and above the contract price as a direct result of the State’s delay.

Notwithstanding the fact that a summary judgment has been entered in favor of the Claimant as to liability, the Claimant still had the burden of proving its damages. These damages fell into three (3) basic categories: fixed expenses, additional labor costs, and additional material costs.

The evidence adduced at trial regarding Claimant’s damages in the area of fixed expenses was speculative except that evidence regarding the telephone bill. Claimant introduced telephone bills for the period of January 22,1980, through March 21,1981, totaling thirty two and 48/100 ($32.48) dollars.

In the area of labor, Claimant established that due to a new union contract, all of the hours paid after May 1,1980, were paid at a rate which was $2.50 higher than the rate that covered the original period of the contract with the State of Illinois. Claimant had to pay 3,521 hours at this increased rate for damages totaling eight thousand eight hundred two and 50/100 ($8,802.50) dollars. With regard to materials, Claimant clearly proved that the cost of fixtures increased by four thousand six hundred twenty nine ($4,629.00) dollars and the cost of wire increased by three thousand six hundred eighty eight ($3,688.00) dollars due to the delay in the completion of this project.

Therefore, an award is hereby made to Public Electric Construction Company, Inc., in the sum of seventeen thousand one hundred fifty one and 98/100 ($17,151.98) dollars.