text:
    (No. 98-CC-4563
    Baker’s Pharmacy, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 20, 1999.

      Order on petition for rehearing filed December 15,1999.

    Moore, Susler, McNutt, Wrigley (Karen L. Root, of counsel), for Claimant.

      Jim E. Ryan, Attorney General (Gregory T. Riddle, Assistant Attorney General, of counsel), for Respondent.
   OPINION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

Epstein, J.

This $113,475 claim against the Respondent’s Department of Corrections (“IDOC”), which alleges a violation of the [former] Illinois Purchasing Act (count I) and a breach of contract (count II), is before us for rulings on three motions: (1) Claimant’s motion for summary judgment on both counts, with relies inter alia on admissions effected by the Respondent’s failure to deny Claimant’s requests to admit; (2) Respondent’s tardy motion for a retroactive extension of time in which to respond to Claimant’s requests to admit and "other” discovery requests; and (3) Respondent’s cross-motion for summary judgment on both counts.

Nature of the Claims

Claimant is a pharmacy and sole proprietorship of James Shupenus, Sr., in Winchester, Illinois. Pursuant to a competitive bidding, Claimant entered into a contract with IDOC (dated May 18, 1993) to supply pharmaceutical services to the Jacksonville Correctional Center (“Jacksonville”) in EY 1994. By a later agreement (dated July 1, 1994) that was apparently not the result of a bidding procedure, the Claimants contract was extended to cover the two-year period ending June 30, 1996, i.e., FY 95-96. Complaint, pars. 4, 6, exhibits A, B.

Claimant asserts that the contract granted it the exclusive right to provide pharmacy services, including dispensing of drugs, to Jacksonville at a “dispensing fee” of $0.48 for each prescription as well as reimbursement for the drugs at certain published rates. Complaint, par. 7.

By letter (dated November 21, 1994), IDOC gave Claimant notice of the “termination of your contract * * * per # * the * * * agreement” as of January 1,1995, when another provider “will assume all responsibility for * * * medical services” to Jacksonville. (Complaint, par. 8, exhibit C.) IDOC contracted with another company to provide pharmaceutical and other medical services to Jacksonville. Claimant alleges that that contract was not, but statutorily should have been, competitively bid; Respondent says that that contract was bid, but legally need not have been. As of January, 1995, IDOC ceased using Claimants services.

Count I asserts Claimant’s exclusive rights under the extended contract and alleges that the contract of its replacement provider is void, as in violation of the competitive bidding requirements of the former Purchasing Act (formerly 30 ILCS 505/6.a). Claimant asks us for damages, to declare the other contract void ab initio and to award it attorneys fees and costs. Count II is a breach of contract claim that asserts the extended IDOC contract, a breach by IDOCs nonperformance (Complaint, count II, par. 10) and consequential damages.

Respondents cross-motion for summary judgment asserts legal defenses: as to the count I statutory claim, a failure to state a cause of action and the lack of a private right of action under Illinois Purchasing Act, and as to the count II contract claim, the termination of the contract. As noted, Respondent also disputes the allegation that the later contract was not bid.

The Requests to Admit:

Respondents Motion to Extend

We first address the request to admit extension motion, as its disposition affects the factual posture of the motions. The governing provision in Supreme Court Rule 216 (applicable here by virtue of our rule, 74 111. Admin. Code 790.20), which provides materially as follows:

"Rule 216. Admission of Fact or of Genuineness of Documents
(a) Requests for Admission. A party may serve on any other party a written request for the admission by the latter of the truth of any specified relevant fact set forth in the request.
O * *
(c) Admission in the Absence of Denial. Each of the matters of fact * 0 * is admitted unless, within 28 days after service thereof, the [requested] party “ “ “ serves upon the [requesting] party * * * either (1) a sworn statement denying specifically the matters ‘"or setting forth 5 * * the reasons why he cannot truthfully admit or deny those matters or (2) written objections * * *”

Under the rule, the Claimants requests to admit, which were not timely denied nor objected to, stand admitted. Almost two months late, the Respondent' filed its extension motion seeking a retroactive reopening of the Rule 216 procedure, which had already run its course. Such an after-the-fact extension is allowable under Supreme Court Rule 183. Bright v. Dickey (1995), 166 Ill. 2d 204, 209 in. Dec. 735, 652 N.E.2d 275.

However, the movant must satisfy the “good cause shown” requirement of Rule 183, which mandates an affirmative showing beyond merely the absence of prejudice to the other party. (Bright v. Dickey, supra.) Here, as in Bright, the movant failed to show good cause.

Respondents sole attempt to show good cause is to point out that three successive assistant attorneys general (AAGs) have been assigned to represent it in this case. Although the current AAG, Bradley R. Bucher, has been extremely diligent, the Respondent has not shown any good cause for its earlier failure to respond to the Claimants request or its counsels failure even to request an extension of the response deadline, which would almost surely have been granted absent prejudice or a histoiy of delay. This Court is painfully aware of the workload burdens on the Attorney General’s office, which are advanced to us constantly in documented extension requests. But the predictable mobility of AAGs is simply not good cause for allowing cases to go untended. The Claimant is entitled to its admissions.

Count I: The Purchasing Act Claim

Both parties have moved for a full summary judgment on the count I claim, which is predicated on a violation of the [former] Illinois Purchasing Act — by IDOC’s letting of the successor/replacement contract without competitive bidding. Claimant alleges, without explanation or causal facts, that Claimant suffered damages as “a result of [IDOC’s] violation of the * * * statute” (Complaint, count I, par. 11).

Claimants motion is factually supported, as to liability at least, by the Respondents admissions pursuant to the request to admit; the critical admission is that the challenged contract was not bid. Respondents later submission of an affidavit (in support of its cross-motion) to the effect that IDOC in fact utilized a bid procedure cannot supersede its factual admission that the later contract was unbid. The Court entertains the cross-motions on the basis of the undisputed (admitted) fact that the successor contract was not bid, and rejects the bid-in-fact defense of Respondents cross-motion.

We thus turn to the issues of law raised by the Respondent’s summary judgment motion as to which there are no disputed issues of material fact.

On the count I liability issue, i.e., liability arising from a violation of the former Illinois Purchasing Act, we agree with the Respondent’s contention that count I is predicated on a direct private cause of action under the Purchasing Act, and that that Act did not create a private right of action, citing Sawyer v. Jarvis Corp. (1982), 89 Ill. 2d 379, 432 N.E.2d 849; and Davis v. Dunne (1st Dist. 1989), 189 Ill. App. 3d 739, 545 N.E.2d 539. This Court recently reviewed the Illinois law of private statutory causes of action, including Sauryer and its progeny, in Farrell v. State, No. 95-CC-0594, supp. op. on denial of rehearing, September 5, 1997. It is clear to us on review of this former statute that no private right of action for damages was created by the former Illinois Purchasing Act. Claimant has not presented authority or a cogent argument to the contrary.

We also agree with Respondent’s contention that count I fails to state a cause of action for violation of the former Purchasing Act because the challenged successor contract for pharmaceutical services and supplies was a contract for professional services, and was thus exempt from the competitive bidding requirements of the former statute. 30 ILCS 505/1 et seq. (1996).

For these reasons, Claimant’s count I claim fails as to liability as a matter of law. Accordingly, as to count I, Respondent’s summary judgment motion will be granted and Claimant’s will be denied.

Count II: The Breach of Contract Claim

Both parties have moved for a full summary judgment on the count II claim, which is predicated on IDOC’s failure to utilize the Claimant’s pharmaceutical services at Jacksonville during the remainder of the extended term (18 months) of Claimant’s contract with IDOC. Again the Claimant’s motion is factually supported by the Respondent’s admissions, and again, Respondent’s cross-motion is primarily based on legal issues .that rest on undisputed facts.

Although Claimant’s count II contract claim suffers from other defects that are not now dispositive — especially as to its unexplained and factually unsupported damages claim — its contractual liability basis fails as a matter of law, which is dispositive, for two reasons.

First, the Contract on its face is unambiguously not exclusive. The exclusivity allegation is a critical element of Claimant’s contract theory — that it had a contractual right to be the sole pharmaceutical provider for Jacksonville for the duration of the contract. But there is not a word of exclusivity in this contract. It nowhere uses language that even hints at a “sole” source or “exclusive” supply or that Claimant would be the “only” pharmaceutical service at Jacksonville.

Claimant tries to plug this hole in its claim by utilizing the Respondent’s “admission” that the contract “allowed Bakers Pharmacy the exclusive right to provide pharmaceutical services to Jacksonville *' * *” (Claimants request to admit, par. 5.) Claimants tactic is cute, sneaky and ineffective. The purported admission is not an admission of fact, but of the conclusory interpretation of a contract, which is a matter of law. (UIDC Management, Inc. v. Sears Roebuck and Co. (1986), 141 Ill. App. 3d 227, 490 N.E.2d 164.) Moreover, even if the Respondent were deemed to have admitted a “fact” of the contracts exclusivity, such an admission by a party is itself inadmissible as parole evidence as to the contract’s interpretation given the Court’s finding that the contract in this regard is unambiguous. (See, e.g., UIDC Management, supra.) Claimant has thus elicited an inadmissible admission.

Second, it is clear and undisputed legally as well as factually that the underlying contract between the Claimant and IDOC (1) was terminated by IDOC as of January, 1995, and (2) was subject to being terminated unilaterally, without cause, under the terms of that contract, which in material part provided:

“CANCELLATION/REMEDIES FOR BREACH
6 # #
Unless otherwise specified, the Department may terminate this contract in whole or in part, without cause, by giving the contractor thirty (30) days written notice. In the event of cancellation, the contractor shall take all steps necessary and reasonable to mitigate closeout costs to the Department. Upon cancellation, contractor will be paid for work satisfactorily completed prior to the effective date of the cancellation.”

Claimant itself pleads the Respondent’s notice-of-termination letter which Respondent has also asserted in its cross-motion for summary judgment. There is no factual issue about the termination having been duly made and timely communicated more than 30 days before the January 1, 1995 termination date. With that termination, Claimants contract rights ceased, and there is no basis for any liability on this contract for the remainder of the extended contract period after January 1,1995. On that, the Respondent is entitled to judgment as a matter of law.

For these reasons, Claimants motion for summary judgment as to count I will' be denied. We will grant Respondents summary judgment motion, with some hesitancy, as to the entire count II contract claim, although it is not absolutely clear that Claimants damage claims are restricted to the post-January 1, 1995, period for which we have concluded that Claimants liability claim fails as a matter of law. However, it appears that such is the case.

We are uninclined to indulge a Claimant in an expansive view of 'its damages claim that it has not clearly pleaded and has not cogently asserted to this Court. If Claimant indeed claims damages arising before the 1995 termination, it may request reconsideration with a proposed amended complaint that clearly identifies those damages and their causation, and we will reconsider our conclusions at that time.

Conclusion

It is unusual, to say the least, for a Claimant to lose on summary judgment despite having won comprehensive admissions of fact by default of the other side — admissions that the Claimant itself formulated. This Claimant has reached this pinnacle of dichotomy between procedural success and substantive failure due to the legal baselessness of its claims.

For the reasons set forth above, the Court finds that on the undisputed facts before us, the Respondent is entitled to judgment as a matter of law on both counts I and II.

Accordingly, it is hereby ordered:

1. Respondent’s motion for an extension of time in which to respond to the Claimant’s requests to admit is denied for want of good cause;

2. Claimant’s tardy motion to strike the Respondent’s affidavit and response to the requests to admit is denied as moot;

3. Claimant’s motion for summary judgment is denied in its entirety;

4. Respondent’s motion for summary judgment is granted as to counts I and II; and

5. Claimant’s claims herein are denied and forever barred.

ORDER ON PETITION FOR REHEARING

Epstein, J.

Claimant has timely petitioned for rehearing of our opinion of July 20, 1999, in which we denied this claim on summary judgment. Claimant also requests oral argument.

This Court rejected Claimant’s two causes of action as a matter of law: count I, an action for improper contract award (to Claimant’s successor) under the [former] Illinois Purchasing Act; and count II, a breach of contract action for wrongful termination of a contract for services to IDOC. Claimant’s petition for rehearing (incorrectly styled as a “motion for review”) does not even address the primary grounds on which its claims were rejected: (1) no private cause of action under the Purchasing Act; and (2) no wrongful termination of the contract (due to IDOC’s express right in the contract to terminate it without cause).

Accordingly, the arguments now advanced by Claimant, even if they had merit, would not warrant reversal of the judgment. For this reason alone, the petition for rehearing is inadequate on its face and does not warrant rehearing.

Claimants arguments on rehearing are also merit-less. Although we need not address Claimants current contentions, two contract interpretation points deserve memorialization.

Claimants breach of contract theory was predicated on it having had an exclusive contract with IDOC, i.e., a sole source contract, such that a wrongful termination would result in Claimants loss of an entitlement to a predictable or ascertainable amount of business (and profits). On this “exclusivity” issue, Claimant now argues:

(a) that the Court “unfairly” criticized its effort to characterize the disputed contract as “exclusive” on the basis of the Respondents admission (by its failure to timely deny claimants request to admit facts); and

(b) that the Court erred in finding that “there is not a word of exclusivity in this contract” (Slip. Op., 4) because of the following provision in the contract (in its General Terms and Conditions):

"Subcontracting
Services will be performed only by the contracting party. No subcontracting is contemplated within this Agreement unless otherwise specified in the section on contractual services to be provided.”

On the admission issue, the Claimant does not address or dispute the point that the interpretation of a contract — especially a facially unambiguous contract — is a matter of law and not a matter of fact, and therefore a party’s factual “admission” of a contract interpretation issue is not dispositive and is ordinarily irrelevant. Claimant has cited no authority to the contrary.

On the issue of Claimant’s “exclusive” right to provide the contracted services to IDOC, the Claimant’s belated discovery of this subcontracting provision adds not a word of exclusivity to this contract. This provision does not provide any exclusivity of the contractors [i.e., Claimants] services to IDOC and imposes no limitations on IDOC whatever. This clause limits only the contractor as to its use of subcontractors, and mandates exclusivity “within this Agreement” only. This provision has utterly nothing to do with IDOC s right to use other providers, which is the only exclusivity issue that matters here.

Unlike Claimants misuse of a factual admission as a legal conclusion, this erroneous argument is neither cute nor sneaky: It is merely 180 degrees off-target.

Claimant does point out one error in the Courts opinion, which should be corrected. Our order inadvertently labeled as “tardy” the Claimants motion (to strike the Respondents affidavit), when it was the Respondents motion (for an extension of time to respond to the request to admit) that was filed late. Claimant is correct that its motion to strike was not tardy. With this correction, and the additional comments above, the Court adheres to its initial opinion.

The petition for rehearing and request for oral argument are denied.

       We unhesitatingly apply Supreme Court Rule 183 to this Supreme Court Rule 216 extension issue. These rules are pari passu and are both applicable here by virtue of our adoption of the Supreme Court Rules to govern practice in this Court. (74 Ill. Admin. Code 790.20) We observe, however, that in this Court the Supreme Court Rules hold the status of rules adopted pursuant to this Court’s statutory authority to adopt procedural rules. Accordingly, the applicability of Supreme Court Rule 183 to. effect retroactive extensions of statutory deadlines in this Court (e.g., deadlines imposed by the Court of Claims Act) presents additional considerations that are not addressed here.


source: Caselaw Access Project

author: Hess, J.

license: Public Domain

text:
    (No. 98-CC-5138
    Stephen Edward Lewis, Claimant, v. The State of Illinois, Respondent.

      Order filed November 1, 1999.

    Stephen Edward Lewis, pro se.

    Jim E. Ryan, Attorney General (Donald C. McLaughlin, Jr., Assistant Attorney General, of counsel), for Respondent.
   ORDER

Hess, J.

Coming on to be heard before this Court is Respondent’s motion to dismiss. The Court being fully advised in the premises finds as follows:

Claimant’s complaint presents three different prayers for relief.

Claimant first alleges that he should be entitled to recover $10 for each day he was in the custody of the Cook County jail because he alleges Western Illinois Correctional Center kept him on its books and that he should still be entitled to the $10 monthly stipend paid to Illinois inmates. The Western Illinois Correctional Center Institutional Directive 05.03.103 — Monetary Compensation for Inmate Assignments at page 5, section G.3 states that an inmate absent from his assignment due to a transfer to a writ facility shall receive no compensation. Accordingly, Claimants first allegation is dismissed.

Next, Claimant prays for damages resulting from his alleged wrongful transfer from the Illinois Department of Corrections (IDOC) custody to the Cook County Jail. The Court of Claims does not have jurisdiction over this claim sounding in constitutional tort. Furthermore, the transfer was proper as illustrated by the Cook County Court order directing the transfer. Accordingly, this allegation is dismissed.

Finally, Claimant seeks damages under section 10— 105 of the Code of Civil Procedure. (735 ILCS 5/10— 105.) Said section provides that any authority transferring a prisoner who fails to produce the writ of mittimus within six hours of the transfer could be liable for up to $500. Claimant apparently failed to read the entire section of the Code. In the last sentence the legislature clearly exempted IDOC from this paragraph. Accordingly, Claimants third allegation is dismissed.

It is hereby ordered that Respondents motion to dismiss is granted and Claimants complaint is dismissed.


author: Raucci, CJ.

text:
    (No. 99-CC-4597
    Kenneth Smith, Claimant, v. The State of Illinois, Respondent.

      Order filed May 9, 2000.

    Kenneth Smith, pro se.

    Jim E. Ryan, Attorney General (Peter C. Heard, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Raucci, CJ.

This cause coming on to be heard on the Respondent’s, motion to dismiss, and the Claimant’s response thereto, the Court being fully advised in the premises, the Court finds that Claimant, an inmate of tire Lincoln Correctional Center, has filed a four-count complaint alleging that Claimant was subjected to. “verbal assaults” and intentional infliction of emotional distress. He claims that four employees of the Respondent’s Department of Corrections called him, or allowed him to be called by others, “Shitty Smitty from New York City” on a regular basis.

The complaint does not state a claim for either assault or intentional infliction of emotional distress. In order to state a claim for assault, Claimant must allege an “unreasonable apprehension of receiving a battery.” (Rosenbaum v. Parkerland Packing Co., Inc. (1977), 55 Ill. App. 3d 959, 963.) Name calling must be “truly extreme and outrageous” and it is “clear that the tort does not extend to mere insults, indignities, threats, petty impressions, or other trivialities.” (McGrath v. Fahey (1998), 126 Ill. 2d 78; Restatement (Second) of Torts (1965), section 46, comment d at 73.) While the name calling may be insulting, it hardly rises to the level of a basis for a compensable claim.

It is therefore ordered, adjudged and decreed that the Respondents motion to dismiss is granted and this claim is dismissed and forever barred.


author: Raucci, C.J.

text:
    (No. 91-CV-2458
    Amy L. Stolov, Claimant, v. The State of Illinois, Respondent

      Order filed March 6, 1998.

    Amy L. Stolov, pro se.

    Jim E. Ryan, Attorney General (Kimberly M. Pate, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Raucci, C.J.

This is a claim for additional compensation under the Crime Victims Compensation Act. (740 ILCS 45/1 et seq.) Claimant Amy L. Stolov, seeks additional compensation for loss of earnings, replacement cost of eyeglasses, and an additional award of $120 for pharmaceutical costs. The bulk of this claim relates to the Claimants contention that this Court has improperly interpreted the statute in respect to the Claimants lost wages. The Claimant contends that the computation of lost wages, based on an average net income for the six months prior to the incident, discriminates against the Claimant because at the time of the crime, the Claimant was attending college.

The Claimant asserts that her average earnings over the two and one-half months of the summer school vacation prior to her enrollment in the fall semester was $656.80 per month. Additionally, the Claimant contends that her lost earnings should have been based either on her wages before she began attending college, or on her wages during the two and one-half summer months prior to the crime. If computed on the basis of the two and one-half months over the summer, her total earnings should have been divided by two and one-half in order to determine the average monthly wage, instead of being divided by six to determine the average monthly wage over the period of six months prior to the crime.

The Claimant’s contention regarding the amount due her for her broken eyeglasses ($315.49) is predicated upon the omission of that item from her initial claim. This supplemental claim was made by the Claimant without any objection by the Attorney General’s Office.

At the hearing, the Claimant abandoned her claim for the additional $120 originally asserted at the commencement of the hearing.

The Claimant sought leave for an additional 45 days to submit to the Commissioner additional documentation to seek additional pharmaceutical and medical related costs incurred by the Claimant. Copies of these additional materials have been submitted to the Attorney General for review and recommendation, but are not sufficiently definitive to enable this Court to consider these supplemental matters for the purposes of this claim.

Section 2(h) of the Crime Victims Compensation Act (740 ILCS 4572(h)) states that loss of earnings shall be determined on the basis of the victims average net monthly earnings for the six months immediately preceding the date of the injury. Had the General Assembly intended to make a different rule for persons employed only part of the six-month period, it could have so provided. We find the Claimants theory of recovery has no basis in law or precedent, as this Court has applied the six-month period for earnings to all claims since the establishment of the Act in 1973.

The Claimant contends that the replacement cost of her broken eyeglasses totaled $315.49. It appears that the Claimant is entitled to the award for the eyeglasses, as there was no objection from the Attorney General.

It is therefore, ordered that the Claimant is awarded $315.49 as additional compensation under the Act.


author: Per Curiam. JANN, J.

text:
    (No. 92-CV-1365

      In re Application of Barbara E. Hewitt

      Order filed June 24,1993.

      Opinion filed September 2, 1999.

    Barbara E. Hewitt, pro se.

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

Per Curiam.

This claim arises out of an incident that occurred on June 18, 1991. Barbara E. Hewitt, wife of the deceased victim, Walter E. Hewitt, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. 111. Rev. Stat., 1987, ch. 70, par. 71 etseq.

This Court has carefully considered the application for benefits submitted on January 10, 1992, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on June 18, 1991, the victim was beaten by an offender who was not known to him. The incident occurred at the Henry County Fairgrounds, Cambridge, Illinois. Police investigation revealed that prior to the incident, the victim and the offender were involved in a verbal dispute. During this dispute, the victim grabbed the offender and a struggle ensued. When the offender attempted to get away from the victim, the victim pursued him and the fight continued. In an attempt to protect himself, the offender kicked the victim and caused both of them to fall to the ground. The victim expired from his injuries. The Henry County Coroner indicated the victim expired as the result of cardiac arrhythmia, an irregular heartbeat. The offender, a juvenile, was apprehended and charged in a juvenile petition with involuntaiy manslaughter. During the adjudicatory hearing, the petition was dismissed based upon the fact that the actions of the offender were in self-defense.

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

3. That it appears from the investigatory report and the police report that prior to the incident, the victim and the offender were involved in a verbal dispute. During this dispute, the victim grabbed the offender and a struggle ensued. When the offender attempted to get away from the victim, the victim pursued him and the fight continued. In an attempt to protect himself, the offender kicked the victim causing both of them to fall to the ground.

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

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

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

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

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

OPINION

JANN, J.

This cause is before the Court on a recommendation from a Commissioner of this Court following a hearing. This Court denied Claimants application for benefits under the Crime Victims Compensation Act (740 ILCS 45/1 et seq.) on June 24, 1993, on the basis that the victims injuries were substantially attributable to, or provoked by, the victims own wrongful actions as proscribed by section 6.1(d) of the Act.

Claimant filed a timely request for a hearing and a hearing was held before a Commissioner of this Court on November 19, 1996. No further action occurred on this case until March 29, 1999, when the case was reassigned to a new Commissioner. A new hearing was scheduled for April 12, 1999, before Blanche Hill Fawell, a Commissioner of this Court.

On that date, Mrs. Hewitt appeared and the Commissioner was able to determine that a hearing had in fact been held in 1996. Mrs. Hewitt provided copies of all the police reports and the Attorney Generals office provided the Commissioner with a copy of the transcript of the 1996 hearing. Both parties agreed that the Commissioner should make a recommendation to the Court based on the police reports and transcript. No new testimony was taken.

We have carefully reviewed the transcript of November 19,1996, and the police reports and other documents ofrecord.

The police reports revealed that the Claimants husband, Walter E. Hewitt, was driving his pickup truck through a crowd of people at a county fair attempting to leave the fair when the offender hit the victims truck with his hand and a verbal dispute occurred. Several witnesses observed that the victim grabbed the offender by his shirt front through the truck window and they exchanged verbal remarks. It also appears the offender’s head struck the window frame during this part of the incident. The offender then punched the victim in the face and broke free of the truck. The offender began walking away from the truck. The victim then got out of his truck, chased after the offender, and grabbed him by the shirt. The offender then kicked the victim in the chest area twice. The victim caught the offender’s leg on the second kick and both fell to the ground and were hitting each other. The offender got up and ran away. The victim remained on the ground suffering from cardiac arrhythmia. He died shortly thereafter. The offender was charged in a juvenile petition with involuntary manslaughter which was subsequently dismissed on the basis that the offender’s actions were in self-defense.

This Court has carefully considered the testimony of the witnesses and all the exhibits introduced into evidence. Based on the evidence as submitted, the Court finds:

1. That the offender in this matter clearly initiated the confrontation by first hitting the victims car with his hand. However, the victim then acted in a manner which contributed to his death when he left the truck, chased after the offender and grabbed him. In an attempt to free himself, the offender kicked the victim in the chest and the resulting blows caused the victims death.

2. That section 10.1(d) of the Crime Victims Compensation Act states that an award shall be reduced or denied according to the extent to which the victims acts or conduct provoked or contributed to his death.

3. That the victims conduct of leaving his truck, chasing down the offender and grabbing him, provoked the offenders’ kicks and therefore his actions contributed to his death.

We also note that the record indicates the victim had previously been prescribed Ativan, a tranquilizer for anxiety attacks, though Mrs. Hewitt stated he had not taken the medication regularly for some time prior to this incident.

It is hereby ordered that the June 24, 1993, order of this Court denying Claimants application for benefits under the Crime Victims Compensation Act is affirmed.


author: Frederick, J.

text:
    (No. 94-CV-0190

      In re Application of Steven Socolovert

      Opinion filed January 30, 1996.

    Steven Socolovert, pro se.

    Jim E. Ryan, Attorney General (Paul H. Cho, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This claim arises out of an incident that occurred on June 16, 1993. The Claimant, Steven Socolovert, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereinafter referred to as the Act. 740 ILCS45/1 etseq.

On December 23, 1994, the Court entered an order denying the claim. The Court found that Claimants conduct contributed to his injury to such an extent as to warrant that the Claimant be denied compensation. On January 29, 1995, the Claimant timely filed a request for hearing. The cause was tried before Commissioner Fryzel.

The Claimant was shot in the leg on June 16, 1993, near 57th Street and St. Louis Street in Chicago, Illinois, by a young boy on a bicycle who flashed gang signs at the Claimant as he drove by the area on his way home from work. The young boy was with several other boys. The Claimant, who does not belong to any gang, responded to the gang signs by stopping his car, exiting the vehicle, and confronting the individuals, one of whom pulled a handgun and shot the Claimant in the upper leg. The offenders then fled the scene and were never apprehended by the police.

The Claimant testified that he did exit his car and confront the young boys rather than just driving off and leaving them behind and probably avoiding injury to himself. The Claimant also testified that the reason he stopped his vehicle was that he came to a stop sign and stopped. He heard a pop. It was a thud against his car. He thought the kids threw a rock against his car. He saw the kids flashing gang signs at him. He had always been taught to stand up for himself and not to be a coward. He was very mad. He got out of his car and started running after the kids who appeared to be of the age of between 12 and 15. He ran after them. He did not possess a gun. The Claimant recognizes he did not use good judgment by chasing these boys. The Claimant then saw one of the boys coming after him with a handgun. The Claimant then started going back to his car. One of the assailants came up to the car and fired into the car, striking the Claimant.

There is no question that the Claimant is a victim of a violent crime. It is indeed a sad commentary when a decent, hard-working young man like the Claimant is shot on the way home by children gang members. The Act states, however, in section 10.1(d) that an award shall be reduced or denied according to the extent to which the victims acts or conduct provoked or contributed to his injuiy or death, or to the extent to which any prior criminal conviction or conduct of the victim may have directly or indirectly contributed to the injuiy to or death of the victim. In re Application of Blackman (1984), 37 Ill. Ct. Cl. 466; In re Application of Casey (1993), 46 Ill. Ct. Cl. 610.

We are required to determine if Claimants award should be reduced or denied according to the extent Claimants conduct provoked or contributed to his injuiy. As Claimant testified, it was not good judgment to angrily chase after these young gang members that infect our inner cities like a scourge. While we might consider that Claimant was attempting a citizens arrest, we are concerned that Claimant did not even check to see if his car was damaged before angrily chasing these young gang members. In this case, hindsight being perfect, the better procedure would have been for the Claimant to first check to see if there was any damage to his vehicle, and, if so, then to call the police. It would not have been cowardly to call the police. It would have been prudent.

The facts are that as imprudent as Claimants actions may have been, his actions were not unreasonable. The reasonable man does not expect children to have guns and use them. We are also impressed with the fact that once Claimant saw the young assailant with the gun, he returned to his car. Claimant was actually shot while in his car with the. doors locked and the windows up.

While Claimant did contribute in some respects to his injuries, he did not contribute to the extent that his claim should be denied. We find that Claimants award should be reduced by 35 percent for his contribution. In light of this finding, the case must be remanded for an investigation and report by the Attorney General of Claimants damages pursuant to the Act.

Wherefore, it is the Courts finding:

1. That Claimant is a victim of a violent crime defined in the Act.

2. That Claimant has met all preconditions for an award pursuant to the Act.

3. That any award must be reduced by 35 percent for Claimants contribution to his own injury.

Therefore, it is ordered:

A. That the Attorney General shall investigate this claim and report to the Court the medical, hospital and employment expenses to which Claimant is entitled as an award pursuant to the Act.

B. That the Court will reduce the award by 35 percent for the reasons stated in this opinion.


text:
    (No. 95-CV-2225

      In re Application of Gloria Anderson

      Opinion filed March 28, 2000.

    Gloria Anderson, pro se.

    Jim E. Ryan, Attorney General (Mark E. McCullough, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This claim arises out of an incident that occurred on November 17, 1993. Claimant, Gloria Anderson, mother of the deceased victim, Calvin Alexander, seeks compensation pursuant to the Crime Victims Compensation Act, hereinafter referred to as the Act. 740 ILCS 45/1 et seq.

Pursuant to an order entered March 13, 1977, this Court determined, pursuant to section 10.1(d) of the Act (740 ILCS 45/10.1(d)), that the victim’s conduct contributed to his death to such an extent that the claim should be denied. The Court based its determination on information contained in the investigatory report which included the police reports. The police investigation revealed that, several days prior to the incident that caused his death, the victim had beaten his ex-girlfriend, Sherry Webster, and had broken the windows of her automobile. In retaliation, the ex-girlfriend’s brothers,. Anthony Webster and Roderick Davis, waited outside of the victim’s residence and confronted him as he exited his apartment. During this confrontation, one of the offenders maced the victim while the other offender stabbed the victim repeatedly about the chest. Subsequently, Anthony Webster was apprehended and convicted of first degree murder. The Claimant made a timely request for hearing which was held on January 26, 1999. She was the only witness who testified.

The Claimant did not witness the incident upon which her claim is based. Her testimony indicated she was aware of the incidents of violence involving her son and Sherry Webster during their relationship. She testified she had warned her son to leave Sherry Webster alone because something was going to happen. She further testified that Sherry Webster had told her son three or four days prior to his murder that her brothers were going to kill him.

The investigatory report contains information from police reports which indicate that on April 14, 1993, the decedent was involved in an incident with Sherry Webster in which he struck her in the face. She suffered a fractured left orbital bone as well as a fractured sinus bone. A friend of Sheriy Webster was also struck in the face by the decedent as the friend attempted to intercede on Ms. Webster’s behalf. As a result of this incident, the decedent was charged with aggravated battery. The investigatory report also contains information from a police report which indicates that on November 5,1993, the decedent was involved in an incident in which he broke a window out of Ms. Webster’s car with a tire iron and thereafter knocked Ms. Webster to the ground and kicked her.

The statement of Roderick Davis, which was taken by police on November 19, 1993, is contained in the investigatory report. That statement reveals that on the date of the incident, Mr. Davis’s brother, Anthony Webster, called him to discuss the frustration his brother was experiencing about the relationship between their sister and the decedent. His brother then asked to be picked up so that they could go confront the decedent. They proceeded to where the decedent was residing. On the way to the decedents residence, Mr. Webster showed Mr. Davis a black pocket lock knife. Mr. Davis possessed a can of mace. When they arrived at the decedent’s residence, they waited for him to come out. When the decedent exited his residence, the brothers confronted him. Following a short argument between Mr. Webster and the decedent, the decedent ran between two cars and ducked. Mr. Davis thought the decedent was going to reach for a gun so he sprayed mace in the decedent’s direction. Mr. Webster then charged the decedent. A scuffle ensued between Mr. Webster and the decedent during which Mr. Davis sprayed mace on both combatants. Mr. Davis heard Mr. Webster and the decedent make noises of pain that he determined were caused by the mace. He then heard the decedent call out for help. When the decedent called out for help, Mr. Davis felt things were getting out of hand so he panicked and ran to their car. When Mr. Webster returned to the car, he had blood on his hands. He indicated that he and the decedent had been involved in a stabbing incident.

A police incident report contained in the investigatory report indicates that, after Mr. Webster turned himself in, he informed the officers that he and his brother decided to confront the decedent about the abuse of their sister. He stated, “We had no intention of killing that boy, we just wanted to kick his ass.” Mr. Webster indicated he knew of the incident where the decedent had broken his sister’s facial bones and that his sister had informed him that the decedent had made recent death threats to her. Mr. Webster claimed he had acted in self-defense after the decedent pulled a knife and stabbed him in the upper thigh. The reporting police officer indicates in the report that the proximity of Mr. Webster’s wound was indicative of a self-inflicted stab wound.

Further information contained in the investigatory report indicates that the decedent suffered 40 stab wounds which caused his death. There is no indication in the record that the decedent was in the possession of a gun during the incident.

Section 10.1(d) of the Act provides that an award shall be reduced or denied according to the extent to which the victim’s acts or conduct provoked or contributed to his injury or death, or the extent to which any prior criminal conviction or conduct of the victim may have directly or indirectly contributed to the injury or death of the victim. The record in this claim indicates that the victim’s prior criminal conduct, the incidents of violence against Sherry Webster, did contribute to his death. Mr. Davis’s and Mr. Webster’s actions were taken in retaliation of the decedent’s prior conduct toward their sister. The record also indicates that the premeditated confrontation of the decedent by Mr. Davis and Mr. Webster occurred two weeks after the last incident of violence against Ms. Webster.

In a case where the Court reduced an award due to the contributory conduct of the victim (In re Application of Ford (1995), 47 Ill. Ct. Cl. 580), the Court stated at 47 Ill. Ct. Cl. 585, “Our determination is supported and influenced by our view that the public policy underlying the Act’s contributory reduction requirement is to discourage, and to avoid State support for, illegal and violence-provoking conduct.” The decedent’s prior conduct requires that any possible award would have to be reduced to the extent his conduct contributed to his death. However, given the facts that two weeks had passed between the decedents last incident of violence against Ms. Webster and that the confrontation of the decedent by Mr. Davis and Mr. Webster was premeditated, it is the opinion of this Court that if an award could be granted, it would not be reduced in its entirety. The Court finds that if an award could be granted in this cause, it would be reduced by 25% due to the decedents prior conduct. However, for the following reasons, the Court finds that the claim must be denied.

The Claimant is seeking compensation for medical expenses, funeral expenses and loss of support. To prevail, the Claimant must prove by a preponderance of the evidence that she has sustained a compensable loss under the rules of the Act. (In re Application of Goff (1989), 41 Ill. Ct. Cl. 320, 327.) Section 10.1(g) of the Act states that “compensation under this Act is a secondary source of compensation * * An award under the Act is therefore reduced by recoveries from various sources, including life, health, accident or liability insurance.

A hospital report contained in the investigatory report indicates the decedent’s medical bills from St. Francis Hospital, which totaled $14,514.28, were written off by the hospital as a bad debt. Claimant testified that she had not paid any of decedent’s medical bills. This portion of her claim must therefore be denied because she failed to prove she incurred any compensable loss regarding the medical bills.

The Claimant testified that the funeral expenses were paid through an insurance policy. This portion of her claim must therefore be denied since a recovery through an insurance policy must be deducted from any possible award.

In Claimant’s application for benefits, Claimant also seeks loss of support on behalf of Shakelia Alexander, daughter of the decedent. At the trial, Claimant stated she was also seeking compensation for loss of support on behalf of two additional children of her son. The Claimant testified the children had different mothers who were supporting the children. Claimant did not present any evidence that Claimant was under any legal obligation to support the children. Though the Claimant testified that her son was working at the Ponderosa Steak House at the time of his death, she did not produce any evidence to document that her son was providing support to his children. The application for benefits under the Act has the burden of proving loss of support by a preponderance of the evidence. (In re Application of DeBartolo (1984), 36 Ill. Ct. Cl. 442, 445.) The Claimant has failed to present any evidence to prove the claim for loss of support. This portion of her claim must therefore be denied.

While the Court is sympathetic with the Claimant for the loss of her son, this claim must be denied due to the failure of Claimant to prove a compensable loss regarding medical and funeral expenses and the failure to prove the claim for loss of support by a preponderance of the evidence. Claimant has failed to meet her burden of proof.

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


author: Per Curiam. Mitchell, J.

text:
    (No. 95-CV-2600

      In re Application of Edward E. Johnson, Jr.

      Order filed July 5, 1996.

      Order on rehearingfiled March 3, 2000.

    Edward E. Johnson, Jr., pro se.

    Jim E. Ryan, Attorney General (Donald C. McLaughlin, Jr. and Kimrerly M. Pate, Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Per Curiam.

This claim arises out of an incident that occurred on September 24, 1993. The Claimant, Edward E. Johnson, Jr., seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. 740ILCS 45/1 et seq.

This Court has carefully considered the application for benefits submitted on March 16, 1995, on the form prescribed by the Attorney General and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on September 24, 1993, the Claimant was shot, allegedly by an offender who was unknown to him. The incident occurred at 1500 Meadow Court, Rockford, Illinois. While being questioned by the investigating police officer, the Claimant indicated that he did not want to sign a criminal complaint nor to assist in the prosecution of the alleged assailant. Charges of aggravated battery were placed against the alleged offender but were later dismissed when the Claimant did not make himself available to the Winnebago County State’s Attorney’s office for further review of the incident.

2. That section 6.1(c) of the Act (740 ILCS 45/6.1(c)) states that a person is entitled to compensation under the Act if the applicant has cooperated fully with law enforcement officials in the apprehension and prosecution of the assailant.

3. That the police report and an investigation by the Winnebago County States Attorney’s office shows that the Claimant declined to cooperate fully with law enforcement officials in the apprehension and prosecution of the assailant in that he did not want to sign a criminal complaint nor assist in the prosecution of the alleged assailant. Charges of aggravated battery were placed against the alleged offender but were later dismissed when the Claimant did not make himself available to the Winnebago County States Attorney’s office for further review of the incident.

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

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

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

ORDER

Mitchell, J.

Claimant, Edward E. Johnson, Jr., a victim of a shooting occurring on or about September 24, 1993, filed a claim seeking compensation pursuant to the provisions of the Crime Victims Compensation Act. (740 ILCS 45/1 et seq.) On or about July 5, 1996, Claimants claim was denied by this Court due to Claimants failure to cooperate with law enforcement. On or about July 22, 1996, and again on July 31,1996, Claimant requested a rehearing.

The following facts were presented at the hearing:

Claimant was robbed by a group of approximately eight individuals with automatic weapons. Claimant was shot by an assailant who he was unable to identify. Claimant was then shot several more times by an individual or individuals whom Claimant was unable to identify.

Claimant was hospitalized for approximately five days. On the second day of his admission to the hospital, Claimant was interviewed by detectives. Claimant informed detectives that he could not identify the individuals who shot him. According to Claimant, the detectives informed him that a witness had identified at least one individual who had shot Claimant. Claimant indicated that he could not positively identify the individual who shot him and refused to assist the detectives in their investigation of the incident.

Claimant received a subpoena to testify at trial against the individual, who was identified as his assailant. Claimant, by his own admission, refused to abide by the subpoena because he did not feel that he could identify the individual in question.

Claimant bases his argument that he refused to cooperate with authorities on his inability to identify his assailants and his refusal to falsely accuse an individual who he could not positively identify as his assailant. Claimants refusal to appear at trial against one of the individuals identified as Claimants assailant prevented authorities from successfully prosecuting this individual.

Section 6.1(c) of the Crime Victims Compensation Act (740 ILCS 45/6.1(c)) states that a person is entitled to compensation under the Act if the applicant has cooperated fully with law enforcement officials in the apprehension and prosecution of the assailant.

Claimant, by his own admission, refused to cooperate fully with law enforcement officials in the apprehension and prosecution of an individual identified as Claimant’s assailant. Therefore, the claim is denied.


author: JANN, J. Per Curiam.

text:
    (No. 96-CV-0283

      In re Application of Maurice White

      Opinion filed July 22, 1999.

      Opinion filed September 7, 1999.

    Maurice White, pro se.

    Jim E. Ryan, Attorney General (Donald C. McLaughlin, Jr., Joshua Bell and Kimberly M. Pate, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

JANN, J.

This matter was heard under the Illinois Crime Victims Compensation Act (740 ILCS 45/1 et seq.) and arises from an incident on June 28, 1995, wherein Claimant, Maurice White, was struck and beaten by two offenders unknown to him while he approached the front door of his home located at 4750 South Vincennes, Chicago. During the fight that ensued, Claimant in one manner or another put his right arm through the plate glass window of the front door, sustaining serious laceration wounds which necessitated a 12-day stay at Cook County Hospital.

At the hearing, the Claimant as well as Yolanda White, Claimants wife, testified. Apparently, the injuries to his arm were so severe that Claimant has no recollection of being interviewed by police personnel at the scene of the crime nor at the hospital. The dispute before us arises as a result of the Attorney Generals investigatory report which states that Claimant failed to timely notify law enforcement officials of the assault. It is undisputed that Claimant was brought to the hospital by ambulance during the early morning hours of June 28, 1995, and did not notify the Chicago Police Department of this incident until July 17, 1995. It is further undisputed that Claimant was released from the hospital on July 10,1995, indicating a seven-day period from the time of his release until the time he reported the incident to the police and was presumably prepared to cooperate in the apprehension of the assailants. The question before the Court is whether the Claimant had justifiable reasons for waiting seven days after he was released from the hospital to notify the police department. It is Claimants contention, supported by his wife’s testimony, that he was heavily medicated and needed the seven-day-at-home recuperation period in order to be coherent enough to make a proper police report. Except for suggesting that the medical reports as to the drugs prescribed by the hospital were unclear, the Respondent seems not to disagree to this contention.

The serious nature of Claimant’s injury and the tremendous loss of blood attendant thereto suggests that it might very well take someone a recuperation period of seven days before they are ready to venture out of the house and conduct their business. In that regard, we believe that the Claimant has properly established that his notification to the police department was timely under the circumstances.

However, unfortunately, Claimant offered no proof whatsoever of lost earnings, although he did testify that prior to the incident he was working at the Drake Hotel. Nor did Claimant offer any unpaid hospital or other medical bills which he might have been entitled to claim as damages for compensation.

It is hereby ordered that Claimant shall be granted 30 days from entry of this order to substantiate his claim by submitting proofs of lost wages and medical expenses to the Attorney General. The Attorney General is directed to file a supplemental report with the Court within 45 days of receipt of Claimant’s proofs.

Claimant’s failure to substantiate his claimed pecuniary losses within 30 days of entry of this order shall result in denial of this cause without order of Court.

OPINION

Per Curiam.

This claim arises out of an incident that occurred on January 28, 1995. The Claimant, Maurice White, sought compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. 740 ILCS 45/1 et seq. (1994).

The Claimant was denied compensation by order of the Court on July 5, 1996. This claim is now before the Court pursuant to a request by the Claimant to reconsider his claim for compensation.

This Court has carefully reviewed its prior order in this cause, the Claimants request to reconsider his claim for compensation and a supplemental investigatory report by the Attorney General’s office. Based on all of the above, the Court finds:

1. That, on July 5, 1996, the Court of Claims entered an order denying the Claimant compensation because the Claimant failed to notify the appropriate law enforcement officials within the prescribed 72-hour time limit.

2. That, on August 12, 1996, the Claimant requested the Court to reconsider his claim for compensation. The Court granted the Claimant’s request and assigned the claim to Commissioner Jeffery T. Whipple on October 2, 1996.

3. That, following a hearing conducted by Commissioner Jeffery T. Whipple, the Court entered an order on July 22, 1999, in which it ruled that the Claimant notified the police department more than 72 hours after the perpetration of the crime. However, due to the nature of the Claimants injuries, the Court determined that the Claimant has properly established that his delayed notification to the police department was timely under the circumstances. In addition, the Court granted the Claimant 30 days to submit documentation to substantiate his claim. The Court referred the claim to the Attorney General’s office for further investigation.

4. That, based on the aforementioned facts, the Court finds that the Claimant was an innocent victim of a violent crime and that he has complied with all of the eligibility requirements of section 6.1 of the Act.

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

6. That after considering insurance and other sources of recovery, the Claimant’s net loss for medical/hospital expenses is $13,900. To date, the Claimant has paid nothing towards this amount.

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

8. That the Claimant’s average net monthly earnings for the six months immediately prior to the incident were $165.08. Claimant was disabled and unable to work for a period of four months and 15 working days. Based upon $165.08 per month, the maximum compensation for loss of earnings if $772.82.

9. That the Claimant has received no reimbursements that can be counted as an applicable deduction under section 10.1(e) of the Act.

10. That the Claimant’s net compensable loss is based on the following:

Compensable Amount

Cook County Hospital...............$13,900.00

Compensable Loss of Earnings........ 772.82

Total.............................$14,672.82

11. That the Claimant has complied with pertinent provisions of the Act and is entitled to compensation thereunder.

12. That pursuant to section 18(c) of the Act, the Court may order that all or a portion of an award be paid solely and directly to the provider of services. In the instant case, the Court finds this section applicable and orders that direct payment be made.

It is hereby ordered that the sum of $772.82 (Seven Hundred Seventy-Two Dollars and Eighty-Two Cents) be and is hereby awarded to Maurice White, an innocent victim of a violent crime.

It is further ordered that the sum of $13,900 (Thirteen Thousand Nine Hundred Dollars) be and is hereby awarded to Cook County Hospital for the hospital expenses of Maurice White.


author: Epstein, J.

text:
    (No. 96-CV-2265
    Thomas H. Larsen, Claimant, v. The State of Illinois, Respondent

      Order filed March 8, 2000.

    Thomas H. Larsen, pro se.

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

Epstein, J.

This cause is before the Court on Claimant Thomas H. Larsen’s application seeking compensation pursuant to the Crime Victim’s Compensation Act (the Act) for expenses associated with an incident that occurred on March 5, 1995. (740 ILCS 45/1 et seq. (1994).) The amount claimed exceeded the statutoiy maximum. On March 28, 1996, the Court entered an order denying the claim. The order included findings (paragraphs 1, 3, 6, 7) that:

(a) the police investigation revealed that the Claimant was attempting to cross the street at 5310 N. Milwaukee, Chicago, Illinois, when he was ■ struck by a motor vehicle. The offending driver fled from the scene of the incident and has not been apprehended;

(b) “crime of violence,” as specified in section 2(c) of the Act, does not include any offense or accident involving a motor vehicle except reckless homicide and driving under the influence of intoxicating liquor or narcotic drugs;

(c) the Court has recognized that although a “hit and run” accident is a crime, it is not one of the crimes enumerated as being compensable under the Act; and

(d) The claim does not meet a required condition for compensation under the Act.

On April 8, 1996, Claimant filed a letter requesting a review or hearing on the claim. The Claimant asserted, “that this incident happened at 2:30 a.m. directly across from a bar/tavern. The car sped out of the parking lot with no regard for pedestrians.”

A hearing was conducted on December 27, 1996, at which Claimant and his wife, Patricia Larsen, testified. Claimant presented three affidavits of three individuals averring that they witnessed the incident, which were admitted into evidence. The affidavits are dated December 26, 1996, and are signed by: Klaus O. Schnetzer, 5330 N. Mobile, Chicago, Illinois; Thomas M. Travers, 5400 N. Ludlam, Chicago, Illinois; and Joyce A. Nockels, 7253 W. Palatine, Chicago, Illinois. All three affiants state that they were with Claimant on the night in question and they saw a man come out of a local tavern on the 5300 block of N. Milwaukee Avenue. All three affiants state that they “had just left the Blue Angel Restaurant to walk home.” Claimant lived about two blocks away.

Affiant Schnetzer states that he witnessed the gentleman “enter his vehicle staggering which looked to me as if he were under the influence of alcohol or narcotics.” All three affiants state that the group crossed at the light on the walk signal when the man pulled out of his parking place and hit Claimant. The man then drove “away while swerving in and out of his lane.” All three affiants opined that the driver looked “very intoxicated” (Travers’ affidavit) or “veiy drunk” (Nockels’ affidavit) or was driving under the influence of alcohol (Schnetzer’s affidavit). Affiant Travers observed the man come out of a bar and enter his vehicle and he looked very intoxicated.

At the hearing, the Attorney General indicated that the Attorney General’s (AG) office did not investigate the legitimacy of the medical and hospital bills. The Commissioner instructed Claimant to provide the AG’s office all bills and other records supporting his claim. The AG’s office was directed to investigate the legitimacy of the medical and hospital bills and the wage losses and to file a report with the Court. (Record, 4-6.) Claimant was instructed to provide all information that he desired the Court to consider, with a copy to the AG’s office.

A December 30,1996, transmittal letter from Claimant to the AG’s office, with copies of numerous bills, checks and other documents supporting the claim was filed.

A letter dated February 5, 1997, from the AG states that the AG’s office "contacted the various providers of services of medical/hospital expenses and was informed that the Claimant, Thomas Larsen, incurred expenses due to this incident in the amount of $10,187.15, which the Claimant has paid.” A March 7, 1997, letter from Claimant, together with various documents in support of his position, indicated that the medical and hospital expenses for which he paid totaled $11,015.74, instead of $10,187.15 as stated in the AG’s letter. The Claimant itemized these expenses in his packet of information. The AG did not itemize the expenses, nor indicate which bills totaled to achieve $10,187.15. An item by item verification of the two lists is therefore not feasible. The $828.59 difference remains in dispute.

In relation to the wage loss, Claimant is claiming the three and one-half months that he was unable to work. (See: March 7, 1997, letter.) Attached to the December 30, 1996, letter is a wage loss verification indicating that Claimant was employed by Schuepfer, Inc., since May 1994, as a machine operator and was earning an average salaiy of $1,000 per week. At the hearing, the AG’s office was instructed to confirm the wage loss. The AG’s office has not filed an independent verification of the wage loss. Subsequent to March 7, 1997, the Commissioner made two requests of the AG, to file a wage verification. No wage verification has been filed. It is noted that Claimant’s application, executed under oath, unequivocally indicates that he was employed during the six-month period prior to the injury as a heavy equipment operator with Schuepfer, Inc., and his monthly take-home wage was listed at $2,800.

The Court finds that the affidavits of the three individuals are sufficient to support a determination that Claimant was injured as a result of a crime of violence, specified in section 2(c) of the Act: “driving under the influence of intoxicating liquor or narcotic drugs as defined in section 11 — 501 of the Illinois Vehicle Code.” Although we view such affidavits with skepticism, these are persuasive and the undisputed circumstances are also supportive of the conclusion that this was a drunk driving incident.

The amount of compensation for medical and hospital expenses and wage losses is more troublesome in fight of the discrepancies noted above. The burden of proof in crime victims compensation cases is on the Claimant to prove his damages by a preponderance of the evidence. (In re Application of Bavido (1992), 44 Ill. Ct. Cl. 449, 160. We note however, that Claimant’s March 7, 1997, letter and attachments have not been disputed or responded to by the AG’s office and that therefore Claimant’s $11,015.74 sum is uncontested.

However, this Courts review of Claimants submissions shows three different bills, two of which may be responsible for the $828.59 differential. There is a customer receipt and a duplicate receipt from Walgreens for 50 Vicodin tablets in the amount of $28.59 bearing identical dates of April 6, 1995. Both Walgreen receipts were apparently included in Claimant’s sum and therefore it should be reduced by $28.59, leaving an $800 differential from the AG’s numbers. There is an $800 statement from MRI of Arlington Heights, which indicates that $550 was being paid on March 7,1995. The statement shows “today adjustments $250” with the balance due being “0.” In the December 30, 1996, submission, Claimant included copies of checks, of which check No. 3634, dated March 7, 1994, would tend to confirm the $550 payment to MRI of Arlington Heights. Damages may not be awarded on the basis of conjecture or speculation. (Bavido at 461.) Due to the discrepancies noted above, the Court finds that Claimant did not meet his burden of estabhshing that the higher sum is due and we will accept the $10,187.15 compensation figure confirmed by the AG’s office.

Accordingly, it is hereby ordered:

1. The Court finds that Claimant Thomas H. Larsen was an innocent victim of a compensable crime of violence under the Crime Victim’s Compensation Act, and is entitled to compensation for qualified out of pocket expenses resulting from the crime of March 5,1995, upon his person; and

2. Thomas H. Larsen is awarded the sum of $10,187.15 as full compensation for his compensable medical and hospital expenses, and $3,500.00 for lost wages, all suffered due to the crime of March 5, 1995; the total award herein is $13,687.15


author: Per Curiam. Epstein, J.

text:
    (No. 96-CV-2984

      In re Application of Gloria Arroyo

      Order filed October 8, 1996.

      Opinion on rehearingfiled September 2, 1999.

    Gloria Arroyo, pro se.

    Jim E. Ryan, Attorney General (Donald C. McLaughlin, Jr., Assistant Attorney General, of counsel), for Respondent.
   ORDER

Per Curiam.

This claim arises out of an incident that occurred on February 23, 1996. The Claimant, Gloria Arroyo, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. 740ILCS 45/1 elseq. (1992).

This Court has carefully considered the application for benefits submitted on April 9, 1996, on the form prescribed by the Attorney General and an investigatory report of the Attorney General of Illinois, which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That, on February 23, 1996, the Claimant was shot, allegedly, by an offender who was known to her. The incident occurred at 10318 Indianapolis Boulevard, Chicago, Illinois. When contacted by the investigating police officers, the Claimant advised them that she did not want to press charges against the alleged offender. As a result of these actions, the alleged offender was released from custody and the Chicago Police Department closed its investigation of this matter.

2. That section 6.1(c) of the Act states that a person is entitled to compensation under the Act if the applicant has cooperated fully with law enforcement officials in the apprehension and prosecution of the assailant.

3. That it appears from the police report that the Claimant declined to cooperate fully with law enforcement officials in the apprehension and prosecution of the assailant in that the Claimant advised the investigating police officers that she did not want to prosecute the alleged assailant.

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

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

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

OPINION ON REHEARING

Epstein, J.

This crime victims compensation claim is before the Court on Claimant Gloria Arroyos application seeking compensation under the Crime Victims Compensation Act (740 ILCS 45/1 et seq.) (the Act) for medical and hospital expenses for injuries suffered because of a gunshot wound inflicted on February 23, 1996. Claimants application states that she was standing next to her friend, Karen Rodriguez, at a bar when a gun fell from the front of her friends pants. The gun discharged when it hit the floor and the bullet lodged in the left side of Claimants left lung.

On October 8, 1996, the Court denied this claim based on the Attorney Generals investigatory report. The Courts order included a finding that Claimant advised the investigating police officers that she did not want to press charges against the alleged offender, who was released from custody. The Chicago Police Department closed its investigation of this matter. Our denial of this claim was based on Claimants failure to comply with the condition of section 6.1(c) of the Act, which requires that applicants fully cooperate in the apprehension and prosecution of the victim-applicants assailant.

On November 12, 1996, the Claimant filed a request for a rehearing. Her request letter was received more than 30 days after the date of the notice to Claimant transmitting the Courts order denying her application. That is too late under the Act and our rules. The over-30 day late request for rehearing is sufficient grounds for denial of this claim. However, the Court declines to reconsider its prior order on the merits, as the Claimant failed even to allege facts that, if true, would warrant a reconsideration of the Courts prior conclusion.

Claimants request for rehearing states that, “even if [she] would have pressed charges [she is] sure they would have released her,” referring to Claimants friend or former friend, the assailant. Claimant also asserts that “[s]he had no traces of gun powder on her hands.” Claimants speculations are entitled to no weight and are irrelevant in any event. The issue under the law is her cooperation, not her unilateral and inexpert opinion as to the likely outcome of a prosecution, which she is not entitled to make, and which — even were we to agree, which we do not — would not be a justification for her non-cooperation under the Act.

In addition — as if there were a need for anything more — Claimants own argument, insofar as it may hold any water, only goes to show the uncertainty of her assailant having committed, or being charged with, any “crime of violence” as that is defined by section 2(c) of the Act. If the Claimants unsupported statements were true, then the logical conclusion would be that Claimant suffered her injuries because of an accident, which is not a compensable “crime of violence” under the Act, and so Claimants application would fail for this reason also.

Claimant testified at a hearing on June 27,1997. She stated that she did not cooperate with the law enforcement officers because she did not know what had happened and did not see the assailant shoot her. The gun fell from the front of her friends pants, hit the ground and went off. (Record, 3-4.) Detectives visited her in the hospital and she could not provide them with any information, because she said she did not know what had happened. (Record, 5.) The detectives had her friend in custody, but Claimant declined to press charges. She did not have any contact with the police after her refusal to sign a complaint. (Record, 6.)

Claimant reiterated her contention that pressing charges would have been futile, because her friend did not pull the trigger and she believed the police would not have kept her. (Record, 7.) The Respondent did not cross-examine the Claimant, and offered the police report into evidence. (Respondents Exhibit No. 1.) The report states that Claimant did not want to prosecute and signed a refusal to prosecute form. (Respondent’s Exhibit No. 1, page 5; Record, 9.) Claimant introduced three doctor bills and a letter referencing the hospital bill. (Claimant’s Group Exhibit No. 1; Record, 10.)

The Court finds that Claimant has not demonstrated that the April 8, 1996, decision should be reconsidered or reversed.

Wherefore, it is hereby ordered that reconsideration is denied. The order of October 8, 1998, is affirmed and this case is closed.


author: Per Curiam. Epstein, J. Per Curiam.

text:
    (No. 97-CV-0430

      In re Application of Bonnie Griffin

      Order filed, October 8, 1996.

      Opinion filed October 6, 1999.

      Opinion filed December 16, 1999.

    Bonnie Griffin, pro se.

    Jim E. Ryan, Attorney General (Donald C. McLaughlin, Jr., Kimberly M. Pate and Robert Huiner, Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Per Curiam.

This claim arises out of an incident that occurred on May 12, 1996. Bonnie Griffin, mother of the deceased victim, Nicholas Griffin, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. 740 ILCS 45/1 et seq. (1992).

This Court has carefully considered the application for benefits submitted on August 14, 1996, on the form prescribed by the Attorney General and an investigatory report of the Attorney General of Illinois, which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on May 12, 1996, the victim was injured as a result of a traffic accident and expired from his injuries on June 9, 1996. The incident occurred at 3800 West Harrison Street, Chicago, Illinois. Police investigation revealed that the victim was a passenger and the victim’s companion was driving southbound on Independence Street when the automobile was struck by the offender’s vehicle while attempting to make a right turn onto Independence Street on the red light. After being struck, the driver lost control of his automobile and hit a light pole on the median. The offending driver then fled the scene and has not been apprehended.

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

3. That “[c]rime of violence” as specified in section 2(c) of the Act does not include any other offense or accident involving a motor vehicle, except reckless homicide and driving under the influence of intoxicating liquor or narcotic drugs.

4. That the issues presented to the Court are: (1) whether the victims death that was caused by the offender’s operation of a motor vehicle is compensable under section 2(c) of the Act; (2) whether the fact that the offender fled the scene of the incident has an effect on the Claimant’s eligibility for compensation under the Act.

5. That as the Court stated in In re Application of Hansen (1980), 34 Ill. Ct. Cl. 401, “The Court has uniformly taken the position that the Illinois Crime Victims Compensation Act is not applicable to unintentional motor vehicle offenses, as not being a ‘crime of violence’ within section 2(c) thereof.” See also In re Application of Desir (1980), 34 Ill. Ct. Cl. 391; In re Application of Stevens (1976), 31 Ill. Ct. Cl. 710; In re Application of Ceniceros (1995), 48 Ill. Ct. Cl. 653.

6. That the Court has also recognized that while a hit and run accident is a crime, it is not one of the crimes specifically enumerated in the Act as being the basis of a claim under the Act. In re Application of Viscarrondo (1980), 34 Ill. Ct. Cl. 402; In re Application of Ceniceros, supra.

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

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

OPINION

Epstein, J.

This cause is before the Court on a recommendation from a Commissioner of this Court following a hearing. This Court denied Claimants application for benefits under the Crime Victims Compensation Act (740 ILCS 45/1 et seq.) on October 8, 1996, on the basis that the victim’s injuries were not attributable to a crime which is compensable under the Crime Victims Compensation Act.

Claimant filed a timely request for a hearing and a hearing was held before Blanche Hill Fawell, a Commissioner of this Court on April 21, 1999. On that date Claimant tendered to the Commissioner various records and requested a continuance.

On May 19, 1999, a hearing was held. On that date the Claimant testified that on May 12, 1996, her son, Nicholas Griffin, was a passenger in a car, which was proceeding through the intersection of Independence and Harrison, when another car entered the intersection against the red light causing the car in which the victim was riding to swerve and hit a light pole. The driver of the other car fled the scene. The victim sustained serious injuries and after several weeks in the hospital died.

The next person to testify was Terrance Berry. Mr. Berry stated that he was standing at the intersection of Independence and Harrison, when he observed a car proceed into the intersection against the red light and drive directly in front of the car in which the victim was a passenger. The offender’s car then swerved around and came up on the sidewalk forcing Mr. Berry to jump out of the way to avoid being hit. From a short distance away, he observed the driver exit the vehicle and throw bottles out of the car. The driver then fled the scene.

Mr. Berry further testified that he gave the police a description of the driver and that the bottles that the driver threw from the car were one beer and two liquor bottles. Mr. Berry was contacted three times after the date of the incident by the police. He was able to provide the police with many details regarding the car including the unique air freshener hanging from the rear view mirror. Mr. Berry testified that he had never met the Claimant before the hearing.

The Attorney Generals office introduced police reports into evidence. The police reports are veiy brief and contain no mention of many of the details that Mr. Berry testified, under oath, that he provided to the police.

The Commissioner found Mr. Berry’s testimony to be very credible. He was not acquainted with the Claimant and testified in great detail and subject to cross-examination.

This Court has carefully reviewed all the testimony presented and all the documents introduced into evidence. The crime of reckless homicide is defined in section 9 — 3 of the Criminal Code. (720 ILCS 5/9 — 3.) The elements of this offense include driving a motor vehicle in a reckless manner which causes death. Being under the influence of alcohol is presumed to be evidence of a reckless act. The Illinois Supreme Court defined the elements of reckless homicide in People v. Wilson (1991), 143 Ill. 2d 236 at 245: “An individual is guilty of reckless homicide when the State proves beyond a reasonable doubt the existence of the following three elements: (1) that the individual was operating a motor vehicle; (2) that the individual unintentionally caused a death while operating the vehicle; and (3) that the acts which caused the death were performed recklessly so as to create a likelihood of death or great bodily harm to some person.”

In People v. House (1st Dist. 1990), 197 Ill. App. 3d 1017, the Court considered a fact pattern similar to the instant case. In House, the driver stopped at a red light in the left turn lane and then accelerated straight ahead cutting in front of an approaching car forcing it to swerve. The Court found that the defendant’s driving was reckless.

In this matter, Claimant bears the burden of proving that a violent crime, reckless homicide, occurred by a preponderance of the evidence. Specifically the Court finds:

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

2. That “[c]rime of violence” as specified in section 2(c) of the Act does not include any offense or accident involving a motor vehicle, except reckless homicide and driving under the influence of intoxicating liquor or narcotic drugs. In re Application of Wilcox (1986), 41 Ill. Ct. Cl. 339.

3. That in this case, the Court finds that the Claimant proved by a preponderance of evidence that the crime of reckless homicide was committed and that the victim in this case died as a result of injuries sustained during the commission of that violent crime.

It is hereby ordered that the September 29, 1998, order of this Court denying Claimant’s application for benefits under the Crime Victims Compensation Act is reversed and that this claim is referred to the Office of the Attorney General for calculation of an award.

OPINION

Per Curiam.

This claim arises out of an incident that occurred on May 12, 1996. Bonnie Griffin, mother of the deceased victim, Nicholas Griffin, sought compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. 740 ILCS 45/1 et seq. (1996).

The Claimant was denied compensation by order of the Court on October 8, 1996. This claim is now before the Court pursuant to a request by the Claimant to reconsider her claim for compensation for funeral/burial expenses.

This Court has carefully reviewed its prior order in this cause, the Claimants request to reconsider her claim for compensation and a supplemental investigatory report by the Attorney General’s office. Based on all of the above, the Court finds:

1. That on October 8,1996, the Court of Claims entered an order denying the Claimant compensation for funeral/burial expenses, because the victim’s fatal injuries that he sustained during a hit-run traffic accident, were not attributable to one of the violent crimes specifically set forth under section 2(c) of the Act.

2. That on October 23, 1996, the Claimánt requested the Court to reconsider her claim for compensation. The Court granted the Claimant’s request and assigned the claim to Commissioner Blanche Hill-Fawell on March 23,1999.

3. That following a hearing conducted by Commissioner Blanche Hill-Fawell, the Court entered an order on October 6, 1999, in which it ruled that the Claimant’s son was a victim of one of the violent crimes specifically set forth under the Act. Based on eye-witness testimony at the hearing, the offending driver was seen driving his car into the intersection while the traffic light was red. The offending driver drove his automobile directly in front of the car in which the victim was a passenger, thus causing a fatal collision. Immediately after the traffic incident, the offending driver was observed exiting the car and throwing liquor and beer bottles out of the automobile. The Court determined that the Claimant proved by a preponderance of evidence that the crime of reckless homicide was committed and the victim in this case died as a result of injuries sustained during the commission of that violent crime. The court vacated its original order and referred the claim to the Attorney General s office for calculation of the award.

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

5. That the Claimant incurred funeral and burial expenses in the amount of $5,171, all of which have been paid. Pursuant to section 2(h) of the Act, funeral and burial expenses are compensable to a maximum amount of $3,000.

6. That the Claimant has received no reimbursements that can be counted as an applicable deduction under section 10.1(e) of the Act.

7. That the Claimant has complied with all pertinent provisions of the Act and is entitled to compensation thereunder.

It is hereby ordered that the sum of $3,000 (Three Thousand Dollars) be and is hereby awarded to Bonnie Griffin, mother of Nicholas Griffin, an innocent victim of a violent crime.


text:
    (No. 97-CV-0779

      In re Application of Sheila Franklin

      Opinion filed March 31, 2000.

    Sheila Franklin, pro se.

    Jim E. Ryan, Attorney General (Kimberly M. Pate and Gary Arkiss, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Hess, J.

This cause is before the Court on a recommendation from a Commissioner of this Court following a hearing. This Court denied Claimants application for benefits under the Crime Victims Compensation Act (740 ILCS 45/1 et seq.) on March 31, 1998, on the basis that the victims injuries were substantially attributable to, or provoked by, the victims own wrongful actions as proscribed by section 6.1(d) of the Crime Victims Compensation Act. 740 ILCS 45/6.1(d).

Claimant filed a timely request for a hearing. A hearing was held before Blanche Hill Fawell, a Commissioner of this Court on October 13,1999.

At the hearing, the Claimant testified that her son Roosevelt was killed on December 29, 1995. The Claimant introduced into evidence several letters which described the night her son was killed.

Cherie FranHin, the victims fiancee, who was present when the victim was killed, testified that her cousin, Cornelius, stole a pager that Roosevelt had given her for Christmas. Cornelius and Roosevelt argued outside about the pager and began pushing and shoving each other. This fight was broken up and everyone went back into the house. The argument began again and Cherie testified that she went outside and got a table leg. Roosevelt came out of the house, grabbed the table leg from her and hit the passenger side window of the offender’s car. The windshield did not break. The offender got out of the car and shot the victim. As the victim was running toward the house, the offender kept shooting at him.

The offender was arrested, pled guilty to second degree murder, and was sentenced to 18 years in the Illinois Department of Corrections.

The office of the Attorney General introduced the police reports into evidence. The reports state that there was an argument over a pager. The victim struck the offender’s windshield, as he was preparing to leave, with a stick causing it to crack but not break. The offender then pulled a gun out of the glove compartment and shot the victim as he was running into his house.

The Court finds that the victim’s conduct contributed to his death. While the Court sympathizes with the Claimant on the loss of her son, the victim’s act of striHng the offender’s windshield was an act of aggression that contributed to his injuries. At the time the offender’s windshield was struck, the offender was attempting to leave. While the victim’s death is an unfortunate incident, it appears from all the evidence that the parties were engaged in an argument which escalated into a physical confrontation in which the victim participated.

It is hereby ordered that the March 31, 1998, order of this Court denying Claimants application for benefits under the Crime Victims Compensation Act is affirmed and that this claim is closed.


author: Per Curiam. Hess, J.

text:
    (No. 97-CV-0923

      In re Application of Shirley M. Henson

      Order filed January 30, 1998.

      Order on petition for rehearing filed March 31, 2000.

    Shirley M. Henson, pro se.

    Jim E. Ryan, Attorney General (Donald C. McLaughlin, Jr., Assistant Attorney General, of counsel), for Respondent.
   ORDER

Per Curiam.

This claim arises out of an incident that occurred on September 8, 1996. The Claimant, Shirley M. Henson, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. 740 ILCS 45/1 etseq. (1996).

This Court has carefully considered the application for benefits submitted on October 2, 1996, on the form prescribed by the Attorney General and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on September 8, 1996, the Claimant was injured by an offender who was not known to her. The incident occurred at 1120 West Catalpa, Chicago, Illinois. Police investigation revealed that the Claimant was injured during a robbery. The Claimant, on her application for compensation, alleges that she could not return to work until August 8, 1997, due to the injuries sustained during the incident. In further support of this, the Claimant submitted a report purportedly prepared and signed by the attending physician which stated that the Claimant received treatment for injuries incurred solely as a result of the incident, and that those injuries kept the Claimant from returning to work until August 8,1997. Further investigation by the Attorney Generals office revealed that the treatment the Claimant received from the physician was unrelated to the incident and that the report was neither prepared, signed, nor concurred with by the physician.

2. That pursuant to section 20(a) of the Act (740 ILCS 45720(a)), a person who has willfully misstated or omitted facts relevant to the determination of whether compensation is due under this Act or of the amount of that compensation, whether in making application for compensation or in the further proceedings provided for in this Act, shall be denied compensation under this Act.

3. That it appears from the investigatory report and the police report that the Claimant willfully misstated relevant facts to obtain compensation under the Act by submitting a signed physicians report that was neither prepared, signed nor concurred with by the attending physician. Therefore, the Court finds that the Claimant has willfully misstated information and that she should be denied compensation pursuant to section 20(a) of the Act.

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

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

ORDER

Hess, J.

This matter is before the Court on Claimants petition for rehearing and the Commissioners recommendation, filed after the Commissioner conducted a hearing. The Court being fully advised in the premises states as follows:

Claimant applied for benefits under the Crime Victims Compensation Act on or about October 2, 1996, for injuries allegedly suffered when she was robbed. By order of January 30,1998, Claimant’s claim was denied.

Claimant submitted a report, allegedly signed by her doctor, stating that she suffered injuries, which he treated her for in the robbery. The Attorney General's office investigated this doctor’s report. The doctor denied signing the report. This evidence appears to present a situation where the Claimant is attempting to perpetrate a fraud upon the Court. Section 14 of the Court of Claims Act (705 ILCS 505/14) provides that a fraud upon the State results in the claim being "forever barred from prosecution in the court.”

Accordingly, Claimants petition for rehearing is denied. Claimants application for benefits under the Crime Victims Compensation Act is dismissed and forever barred.


author: JANN, J.

text:
    (No. 97-CV-1726

      In re Application of Taofeeg Oguniana

      Opinion filed January 28, 1999.

    Legal Assistance Foundation of Chicago (Devereux Bowly, of counsel), for Claimant.
    Jim E. Ryan, Attorney General (Kimberly M. Pate, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

Claimant seeks an award pursuant to the Crime Victims Compensation Act (740 ILCS 45/1 et seq.), hereinafter the Act. Claimants application was denied pursuant to section 6.1 of the Act for failure to fully cooperate with law enforcement officials. Claimant made a timely request for hearing, which was granted and held before Commissioner Dillard in Chicago, Illinois.

Claimant testified in his own behalf at hearing and was represented by counsel. Claimant is a 22-year-old man who recently emigrated from Nigeria. He testified that on October 28, 1996, he was exiting a bus near 78th Street and Loomis Street in Chicago, when he was attacked and stabbed in the left chest by an unknown assailant wearing a hood or mask. Claimant fell to the ground after being stabbed and stated that he was unable to remember much about his attacker or the ensuing chain of events. Claimant knew of no reason for the attack and saw only the person who stabbed him who wore a mask or hood of dark fabric over his face.

Claimant somehow made his way to the nearest public place, a laundromat, in hopes of obtaining help. The police report indicates that a person at the laundromat waved down passing police officers who then summoned an ambulance and Claimant was transported to Christ Hospital for medical treatment. He stated he was bleeding profusely from a deep wound which was only 1/2 inch from his heart when the police arrived at the laundromat. (He was advised of the wound proximity while in the hospital.) He stated he was in a state of shock and unable to give the police much information at the scene. Claimant stated he was unable to speak as he could not breathe and that he was not fluent in the English language at the time.

The police report indicates that Claimant was questioned again at the hospital, apparently in the emergency room. Claimant stated he was still quite disoriented at that time and unable to provide further information about the attack. The police report also indicates that the reporting officers were advised that Claimants condition was serious by a Dr. Fitzsimmons.

The only evidence of record which is inconsistent (by lack of explanation) is an entry on the police report that Claimant was “able to walk and move freely without assistance at the scene and at at the hospital.” The State presented no witnesses at hearing and no affidavits to support said notation. Claimant was advised to contact the police if he could provide further information at a later time. Claimant stated he had no further observations or recollections of the attack and thus did not contact the police again. No police officers contacted Claimant after the date of the attack.

Claimant introduced a bill for medical expenses at Christ Hospital in the amount of $4,430.95. He testified that no payment has been made and that he had no medical insurance or other source of benefit. The bill was introduced without objection.

Based upon the evidence of record and the Commissioners recommendation, we hereby find that Claimant complied with section 6.1 of the Act and assisted law enforcement officers to the best of his ability under the circumstances.

It is hereby ordered that Claimant is granted an award in the sum of $4,430.95 for medical expenses arising from the criminal assault of October 28,1996.