author: Dillard, J. Burke, J. Burke, J.

text:
    (No. 86-CV-1310

      In re Application of Nelda M. Cole

      Order filed February 25, 1987.

      Opinion and order filed March 17, 1989.

      Order filed October 17, 1991.

      Order filed December 9, 1993.

    Nelda M. Cole, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Sallie Manley and Suzanne J. Schmitz, Assistant Attorneys General, of counsel), for Respondent.
   OPINION AND ORDER

Dillard, J.

This claim is brought by Nelda Cole for compensation under the Crime Victims Compensation Act (Ill. Rev. Stat. (1987), ch. 70, par. 71 et seq.) following the death of her husband on February 4, 1986. Claimant makes application for compensation as a “person who was dependent upon the deceased victim of a crime of violence for [her] support at the time of the death of that victim.” Ill. Rev. Stat. (1987), ch. 70, par. 72(a).

Facts

Decedents body was found on February 5,1986, in a six-foot drainage ditch with mud banks in rural Montgomery County. It was determined death was caused by drowning and testing revealed a blood alcohol level of .36.

The sheriffs investigation resulted in the arrest of two Montgomery County men — Michael Daniels and Danny Sanford. Daniels gave a statement to police that he and Sanford were at a local tavern with Cole at 9:00 p.m. on Februaiy 4, 1986, when Cole asked them for a ride to someone’s home. After driving around the rural areas for 15-30 minutes, Daniels asked the driver Sanford to stop because he needed to urinate. After Daniels exited the car he heard a “thump” and turned around. He stated that Sanford had thrown Cole down onto the ground, knocking off the victim’s glasses, took his wallet and went through the victim’s pockets. Sanford and Daniels then got back into their car, after they kept Cole’s wallet and $60. They then drove away, leaving Cole lying conscious on the edge of the roadway. Both men were charged with robbery under section 18 — 1 of the Criminal Code, Ill. Rev. Stat. (1987), ch. 38, par. 18 — 1.

The Attorney General submitted an investigatory report that concluded that the victim died as a result of accidental drowning and that, since accidental drowning was not one of the crimes of violence defined in section 2(c) of the Crime Victims Compensation Act (Ill. Rev. Stat. (1987), ch. 70, par. 72), the Claimant was not entitled to compensation. This court entered an order adopting the findings and conclusions of the investigatory report and denying the claim. Claimant appealed pursuant to section 13.1(a)(3) of the Act. (Ill. Rev. Stat. (1987), ch. 70, par. 83.1(a)(3).) A hearing was subsequently held before a commissioner.

The Commissioner’s Hearing

At the hearing, the investigation reports of the Montgomery County Sheriff and the transcript and records of the coroners inquest were admitted into evidence (Ill. Rev. Stat. (1987), ch. 70, par. 83.1(b).) Also, the investigator for the Montgomery County Sheriff testified describing the condition of the victim when the body was found. There were cuts and bruises on Cole’s face and the investigator concluded these were a result of the victim being thrown onto the gravel roadway. Also, he opined that after the two assailants departed, the victim — who was virtually blind without his glasses — stumbled into the drainage ditch. Because the sides of the ditch were wet mud, he was unable to crawl out (marks on the sides were found where he apparently tried to do so), and drowned in the water, which was high because of recent rains. In response to hypothetical questions, the sheriff's investigator said that: (1) given the level of intoxication, that condition alone would have prevented Cole from escaping the ditch; (2) even if Cole had not been intoxicated, without his glasses he could not have escaped the ditch; and (3) the injuries themselves were not severe enough alone to prevent Cole from escaping the ditch but contributed to preventing him from escape.

Issues

The initial issue is whether Arnold Cole was killed due to a crime of violence perpetrated or attempted against him. (Ill. Rev. Stat. (1987), ch. 70, par. 72(d)(1).) A crime of violence means and includes offenses defined in specified sections of the Criminal Code. (Ill. Rev. Stat. (1987), ch. 70, par. 72(c).) Robbery, the offense with which Sanford and Daniels were charged, is not included in such statutory list. However, both assault under section 12 — 1 and battery under section 12 — 3 of the Criminal Code are included. (Ill. Rev. Stat. (1987), ch. 38, pars. 12 — 1, 12— 3.) The actions of Sanford satisfy the elements of either offense, as those actions were described by Daniels. There is no requirement in the Act that the perpetrator be charged or convicted of the crime of violence. We therefore find that Cole was a victim of a crime of violence.

The second element of section 2(d)(1) of the Crime Victims Compensation Act requires that the victim be “killed or injured * * * as a result of’ the crime of violence. Since the claim is made for the death of Cole, the injuries he received from the assault are not at issue. Rather, the issue is whether Cole was killed “as a result of’ the assault.

There is no requirement in section 2(d) that the death be a direct and proximate result of the crime. Rather, the legislature limited the wording to the less stringent requirement of simply “a result of.” This reading of section 2(d) is consistent with the provisions of section 10.1 of the Act relating to compensation (Ill. Rev. Stat. (1987), ch. 70, par. 80.1). Section 10.1(d) provides:

"[A]n 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 the extent to which any prior criminal conviction or conduct of the victim may have directhj or indirectly contributed to tire injury or death of the victim.” (Emphasis added.)

The language allows reductions based upon the conduct of the victim but does not require a “direct and proximate” measure. Reading sections 2(d) and 10.1(d) in concert, it is most reasonable to conclude that the legislature intended that the conduct of the victim — as well as the conduct of the perpetrator — of the crime be judged as to whether it had any measurable connection with the injuries or death. If such measurable connection is found, then the evidence satisfies the “result of’ requirement of section 2(d)(1) of the Act.

The evidence in this case is that Arnold Cole was thrown to the ground and had eyeglasses knocked off. As a result he suffered bodily injuries, sufficient to at least limit his ability to escape from the drainage ditch. Left in that condition by his assailants, Cole stumbled into the ditch. Unable to escape the high water, he drowned. Therefore, we find that the death can be attributed to a measurable degree to the assault because of the injuries. Also, we find that Claimant is entitled to compensation as a dependent of the victim.

The evidence is that the victims funeral expense was $3,002.18 and his burial expenses were $100. Of this, $255 was paid by Social Security and $645 by the Illinois Department of Public Aid. The balance was paid by Lyle Cole, the victims brother. There were no medical and hospital expenses.

The victim was 48 years old at the time of his death. He had been a construction worker but had suffered several heart attacks. As a result, he had been disabled for about one year. His only source of income was $455 monthly from Social Security disability benefits. The record does not contain evidence as to whether Claimant was receiving any widows portion of the victims Social Security benefits or any other public assistance income, nor is there adequate evidence as to other potential deductions under section 10.1(e) and 10.1(g) of the Act.

Having reviewed the evidence as to the cause of death, however, we were able to make findings under section 10.1(d) of the Act. Based upon the testimony and record evidence, we find that the victims conduct of voluntary intoxication contributed to his death to the extent of 50%. Therefore, it is hereby ordered that any award should be reduced by 50% under section 10.1(d).

It is further ordered that this claim be returned to the Attorney General for investigation as to the amount of loss of support and the amount of any deductions under section 10.1(e) and 10.1(g), and whether any award for funeral and burial expenses should be made to Claimant or to Lyle Cole, victim’s brother, who actually paid the unpaid portion of those expenses.

ORDER

Burke, J.

This cause coming to be heard upon the Respondent’s motion to dismiss, all parties having notice and the Court being fully advised in the premises, the Court finds:

(1) That the instant case was heard and an order entered on March 13, 1989, directing the matter to Attorney General for investigation.

(2) That the Attorney General followed the above order and made reasonable attempts to investigate.

(3) That Claimant failed to cooperate with the investigation.

(4) That Respondent filed a motion to dismiss and Claimant was given time to respond.

(5) That Claimant continues to be uncooperative.

It is hereby ordered that Respondent’s motion to dismiss is granted and the instant case is dismissed with prejudice.

ORDER

Burke, J.

This cause coming to be heard upon the Court's motion, and the Court being fully advised in the premises, the Court finds: That the Claimant died on January 23, 1992.

It is hereby ordered that the instant case is dismissed.


source: Caselaw Access Project

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

license: Public Domain

text:
    (No. 87-CV-0997

      In re Application of Naseem Abusharif

      Opinion filed May 23, 1988.

      Order filed October 18, 1991.

      Opinion filed August 30, 1993.

    Naseem Abusharif, pro se, for Claimant.
    Neil F. Hartigan and Roland W. Burris, Attorneys General (James A. Tyson, Jr. and Charles Davis, Jr., Assistant Attorneys General, of counsel), for Respondent.
   OPINION

POCH, J.

This claim arises out of an incident that occurred on October 25, 1986. Naseem Abusharif, Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. (1985), ch. 70, par. 71, et seq.

This Court has carefully considered the application for benefits submitted on March 18, 1987, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

(1) That the Claimant, Naseem Abusharif, age 58, was a victim of a violent crime as defined in §72(c) of the Act, to wit: aggravated battery. Ill. Rev. Stat. (1985), ch. 38, par. 12 — 1.

(2) That on October 25, 1986, the Claimant was shot by an unknown offender who was burglarizing his grocery store. The incident occurred at Route 171 and Smith Road, Lockport, Illinois. Police investigation revealed that the Claimant went to the store to investigate an activated burglar alarm. The offender, who had gained entry into the store, approached the Claimant with a gun, demanded his money and shot him. The Claimant was initially transported to Silver Cross Hospital and was later transferred to Christ Hospital for treatment of his injuries.

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

(4) That section 2(h) of the Act states that loss of earnings shall be determined on the basis of the victims average net monthly earnings for the six months immediately preceding the date of the injury or on $750 per month, whichever is less.

(5) That the Claimant was self-employed as owner/ operator of Hollywood Towers Food and Liquor Store at the time of the incident. The Claimant has indicated that his business is operating at a loss. Therefore, the Claimant has no net earnings upon which to base his claim for loss of earnings.

(6) That the Claimant has submitted and verified medical/hospital expenses in the amount of $29,832.70, none of which was paid by insurance, leaving a balance of $29,832.70. To date, the Claimant has paid $135 towards this balance.

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

(8) That pursuant to section 10.1 of the Act, this Court must deduct from all claims the amount of benefits, payments or awards payable under the Workers Compensation Act, Dram Shop Act, Federal Medicare, State Public Aid, Federal Social Security Administration burial benefits, Veterans Administration burial benefits, health insurance, or from any other source, except annuities, pension plans, Federal Social Security payments payable to dependents of the victim and the net proceeds of the first $25,000 (twenty-five thousand dollars) of life insurance that would inure to the benefit of the applicant.

(9) That the Claimant has received no reimbursements that can be counted as applicable deductions.

(10) That after making all the applicable deductions under the Act, the pecuniary loss resulting from the Claimants injuries is in excess of $25,000, the maximum amount allowed in section 10.1(f) of the Act.

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

(12) That the Claimant is entitled to an award of $25,000, which may be prorated as follows:

Compensable Amount

% of Loss

Total Award

Christ Hospital $21,734.10 72.9% $18,225.00

Parkview Orthopedic Group, S.C. 6,555.00 22.0% 5,500.00

Silver Cross Hospital 509.60 1.7% 425.00

Fisher Mangold/Joliet 263.00 .9% 225.00

Norval T. Cocadis, M.D. 250.00 .8% 200.00

Para-Care Inc. Ambulance Service 191.00 .6% 150.00

Lawn Medical Center, S.C. 164.00 .5% 125.00

Associated Radiologist of Joliet, S.C. 31.00 .1% 25.00

Paid Medical Expenses 135.00 .5% 125.00

Total $29,832.70 100.0% $25,000.00

It is hereby ordered that the sum of $125 (one hundred twenty-five dollars) be and is hereby awarded to Naseem Abusharif, an innocent victim of a violent crime.

It is further ordered that the sum of $18,225 (eighteen thousand two hundred twenty-five dollars) be and is hereby awarded to Naseem Abusharif and Christ Hospital.

It is further ordered that the sum of $5,500 (five thousand five hundred dollars) be and is hereby awarded to Naseem Abusharif and Parkview Orthopedic Group, S.C.

It is further ordered that the sum of $425 (four hundred twenty-five dollars) be and is hereby awarded to Naseem Abusharif and Silver Cross Hospital.

It is further ordered that the sum of $225 (two hundred twenty-five dollars) be and is hereby awarded to Naseem Abusharif and Fisher Mangold/Joliet.

It is further ordered that the sum of $200 (two hundred dollars) be and is hereby awarded to Naseem Abusharif and Norval T. Cocadiz, M.D.

It is further ordered that the sum of $150 (one hundred fifty dollars) be and is hereby awarded to Naseem Abusharif and Para-Care Inc., Ambulance Service.

It is further ordered that the sum of $125 (one hundred twenty-five dollars) be and is hereby awarded to Naseem Abusharif and Lawn Medical Center, S.C.

It is further ordered that the sum of $25 (twenty-five dollars) be and is hereby awarded to Naseem Abusharif and Associated Radiologists of Joliet, S.C.

ORDER

Montana, C.J.

This cause comes on to be heard on the applicants request to reopen and “lift the lien” on the expected proceeds of a civil case arising out of the same incident as gave rise to the case at bar, due notice having been given, and the Court being advised.

In the request at bar, applicant has alleged that he has incurred medical expenses of $37,000 as a result of the crime which gave rise to this claim. He has been previously awarded and paid a maximum benefit of $25,000 under the Crime Victims Compensation Act, leaving alleged unreimbursed expenses of $12,000. He stated that he has a collateral civil action wherein a $10,000 settlement has been reached and against which a $25,000 lien has been placed pursuant to the Act.

It is hereby ordered that this matter is reopened and referred to the Office of the Attorney General for: (1) verification that unreimbursed expenses have been incurred as a result of the crime and the amount of any such expenses and (2) report as to its position on whether the lien should be lifted in view of the additional expenses and amount of the settlement.

OPINION

Sommer, C.J.

This cause coming on to be heard on the Claimant's request for the waiver or reduction of the lien maintained by the State for monies it has paid under the Crime Victims Compensation Act (Ill. Rev. Stat. (1985), ch. 70, par. 71 et seq.

The Claimant went to the grocery store owned by him, at 5:00 a.m. in the morning on October 25, 1986, to investigate an activated burglar alarm signal and was confronted and shot at his store by a burglar.

The Claimant filed a claim under the provisions of the Crime Victims Compensation Act (Ill. Rev. Stat. (1985), ch. 70, par. 71 et seq.), hereafter referred to as the Act. The Claimant had medical bills and expenses resulting from the incident totalling $29,832.70, which was prorated and paid by Respondent to the Claimant’s creditors.

The Claimant thereupon filed a civil action in the circuit court of Cook County, 88-L-18007, against the Forest Alarm Service, Inc., the company furnishing the alarm service in the Claimant’s store, alleging negligence on the part of the defendant for failure to properly service the alarm system as well as its failure to notify the police of the alarm system being activated.

An examination of a pre-trial memorandum in the Cook County case disclosed that a notice of lien had been filed in favor of the State of Illinois in the amount of its award paid on behalf of the Claimant of $25,000. The Claimant, in the belief that his suit against the Forest Alarm Service, Inc. may be settled in his favor, for an amount less than the Respondents lien of $25,000, seeks a waiver or reduction of the lien of $4,832.70, his unreimbursed medical expenses.

This Court in In Re Application of Setuko M. Cobb (1992), 44 Ill. Ct. Cl. 438, has held that where the Claimant recovers in the circuit court and where the circuit court award plus the crime victims compensation award does not fully compensate the victim as measured by the Act, the lien might be waived. In the present claim, if the lien were to work so that the circuit court award were to be totally paid to the State, then the Claimant would not be fully compensated for his expenses compensable under the Act. If, however, the lien is waived in the amount of $4,832.70, the Claimant would be fully compensated. To do otherwise would remove the incentive for injured parties to seek redress against their assailants and to pursue repayments for the State in such cases.

The Claimant also asks for attorneys fees. The counsel for the Claimant, Stephen Block, ably argued on behalf of his client, but there is no provision in the Act for the States paying attorneys fees, so we must deny this claim for attorney’s fees.

It is therefore ordered that the State’s lien is waived in the amount of $4,832.70 but remains in effect for monies recovered over and above that amount.


author: Montana, C.J. Burke, J.

text:
    (No. 88-CV-0894

      In re Application of David P. Norby

      Order filed November 6, 1989.

      Opinion filed October 24, 1991.

      Order filed December 9, 1993.

    Chris Cueto and Gregory M. Skinner, for Claimant.
    Neil F. Hartigan and Roland W. Burris, Attorneys General (James Maher, Agather McKeel, and Paul H. Cho, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Montana, C.J.

Chief Justice Montana delivered the opinion for the Court.

This is a claim for compensation filed pursuant to the Crime Victims Compensation Act, Ill. Rev. Stat. (1989), ch. 70, par. 71, et seq. (hereinafter referred to as the Act). This Court has exclusive jurisdiction to hear and determine this matter pursuant to section 8 of the Court of Claims Act. Ill. Rev. Stat. 1989, ch. 37, par. 439.8(g).

For all practicable purposes, this case is undisputed. The facts show that the applicant, David B. Norby, on May 17, 1987, while driving home from a friends house, struck a parked Toyota automobile. The Toyota thereupon rolled backwards striking a 1984 Porsche sportscar. Norby testified that his car strayed when he took his eyes off the road to adjust a radio, thereby causing said accident.

Although the owner of the Porsche was not present, a Mr. Miles, charged with taking care of said car, appeared immediately after the accident. Norby testified that he apologized for hitting the car and assured Mr. Miles that his insurance would cover the cost of repair. This apparently did not satisfy Mr. Miles as he struck Norby several times in the face. The applicant at no time made any threatening gestures towards Mr. Miles, nor did he say anything to provoke such actions. As a result of Mr. Miles beating him, Norby received facial injuries resulting in some $12,652.17 worth of medical bills.

The police arrived shortly after the “fight” and issued claimant a ticket for illegal lane usage. Although not charged immediately, a warrant was finally issued for Mr. Miles’ arrest (after applicant secured a witness to the event and formally filed a complaint).

Norby filed his request for compensation (under the Crime Victims Compensation Act, hereinafter referred to as the Act) on April 22, 1988. An investigatory report was subsequently submitted by the Attorney General suggesting the application be denied. The reason submitted for this refusal was that the applicant failed to fully cooperate with the law enforcement officials as required by section 6.1 of the Act. This Court thereafter ordered, without a hearing, that Norbys application be denied based upon said Attorney Generals report. Norby thereupon timely filed a request for a hearing to review said order pursuant to section 13.1(a)(3) of the Act.

After receiving additional evidence and reviewing the record in its entirety, it is determined that Norbys application was wrongfully denied. Although the Attorney General is correct when it says a victim should not be granted compensation if he fails to cooperate with law enforcement officials (see In re Application of Gary C. Ford (1985), 37 Ill. Ct. Cl. 443), there is just no evidence of such a failure in this case. Applicant testified that on no less than five occasions he contacted the Circuit Clerks office to tiy and find out when he was needed to testify against Mr. Miles. Each time he was told that Mr. Miles’ hearing had not yet been set. At no time was applicant contacted in follow-up of this case. Apparently, the charges against Mr. Miles were finally dismissed, most probably due to failure to prosecute. This does not, however, appear to be the applicant’s fault as the evidence indicates he was ready, willing, and able to cooperate with the law enforcement officials at all times. The State of Illinois has not disputed any of these facts.

All that remains, therefore, is to determine the compensable losses. The record is inconclusive on this issue. Norby testified to having incurred approximately $12,000 in medical bills and to having paid a portion of those bills. It is the Court’s policy to award reimbursement to applicants direcdy for compensable expenses which they have paid and to make awards co-payable to applicants and medical providers for outstanding bills. We cannot make such a determination based on the record before us. Applicant also seeks compensation for lost earnings. The record is insufficient for us to make a determination on that issue too.

It is hereby ordered that this matter is referred to the Office of the Attorney General for investigation and report on the compensation due the applicant as a result of the crime.

ORDER

Burke, J.

This cause being heard upon the Court’s own motion, it is hereby found that:

The parties have entered into a stipulation whereby the Attorney General’s Office recommends that the sum of $4,443.05 be paid to Claimant, David P. Norby, the innocent victim of a violent crime.

Wherefore, it is hereby ordered that the sum of $4,443.05 be paid to David P. Norby, for paid medical/ hospital expenses and lost earnings suffered as a result of the incident.

This case is hereby closed.


author: Sommer, C.J.

text:
    (No. 89-CV-0607

      In re Application of Laura Demby

      Order filed. May 18, 1990.

      Opinion filed August 25, 1993.

    Laura Demby, pro se, for Claimant.

      Neil F. Hartigan, Attorney General (James Maher, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

This claim for compensation by the Claimant, Laura Demby, pursuant to the Crime Victims Compensation Act (hereinafter the “Act”), arises out of an incident that occurred on September 8, 1988, resulting in the death of the victim, James Demby. The Claimant seeks compensation for loss of support for the deceased victims four minor children, Sherita (born: 8/29/71), Darno (born: 3/24/73), Devin (bom: 8/2/87) and Joscar (bom: 8/5/88).

On May 18, 1990, this Court entered an order denying this claim. This Court in paragraph 5 of its order, found that pursuant to a judgment for dissolution of marriage, the victim was subject to a requirement to pay $35 per week as child support for Sherita and Darno. Paragraph 6 of the order included a finding that after the dissolution of the marriage the victim and the Claimant produced two children, Devin and Joscar. This Court concluded that the Claimant had not submitted documentation to substantiate that the victim had met his child support obligation in regards to Sherita and Damo, for the six months preceding his death, or had supported Devin and Joscar preceding his death.

On June 4, 1990, the Claimant requested a review of the order of denial. This matter was set for a hearing on February 5, 1991, September 20, 1991, and June 10, 1992. The Claimant was present at all three hearings and submitted documentation in an effort to substantiate her claim.

The Claimant testified that, contrary to the Courts finding, which was based upon the Attorney Generals investigatory report, the deceased victim was subject to an order requiring him to pay $85 a week as child support for Sherita and Damo, not $35 as previously determined.

The Claimant further testified that since the dissolution, the Claimant and victim bought a house. The Claimant apparently had her own income. The victim was self-employed as owner and automobile mechanic at Express Auto Repair Shop in Chicago, Illinois. The Claimant and the children were living with the victim for the six months preceding his death.

The Claimant and victim shared a joint checking account. In addition to the joint account, the Claimant testified on February 5, 1991, that the Claimant and victim each kept their own checking account. The Claimant stated the victim dealt in cash also. For that reason, there would not be copies of checks showing that he wrote checks for clothing, medical or educational expenses for the children. No tax return was filed on behalf of the victim for 1988. The Claimant did produce a copy of the victim’s 1987 individual tax return, which indicates one dependent — Devin. The youngest child was bom in 1988. The hearing of February 5, 1991, was continued to allow the Claimant an opportunity to provide evidence that the victim was supporting the four children.

At the September 20, 1991, hearing, the Claimant produced a certified copy of the judgment for dissolution which clearly demonstrated that the victim was obligated to pay $85 per week for child support for Sherita and Darno.

The Claimant presented two letters to support the position that victim was making the required child support payments. The letter from Leonard Parker, a friend of the deceased victim, indicates that on “many Friday nights” he would be present when the victim would give the Claimant $200 and $500 upon several different occasions.

A second letter from Barbar Harvey, the sister of the deceased victim, indicates that she lived with the victim and the Claimant from June, 1987 through May, 1988. Harvey also states in the letter that she saw the victim give the Claimant “$100 a week and sometimes more.”

The victims 1987 U.S. individual income tax return showed an adjusted gross income of $8,566.53 for 1987.

The Claimant testified that the victim would deposit cash into their joint account. She provided a series of original deposit slips in the name of James Demby for a checking account at Heritage Pullman Bank. All deposit slips were for dates in 1987, with one exception that being a slip dated February 6, 1988. No slips were produced bearing a date within the six months preceding the date of the victim’s death, September 8, 1988.

On June 10, 1992, an additional hearing was conducted in an effort to provide the Claimant an opportunity to demonstrate that the deceased victim was supporting the minor children. The Claimant provided a packet of documents that purport to be photocopies of invoices prepared by the deceased victim for work performed in relation to his business. All of the invoices were dated within the six-month period of time preceding the date of the incident. The invoices totaled approximately $12,325, indicating gross revenues for the business, and including charges for labor, parts and supplies. The "invoices provided for a subtotal for labor of approximately $3,172.42.

It is our finding that James Demby was living with Laura Demby and four children at 12748 S. Bishop, Chicago, Illinois, and working at Express Auto Repair at 2158 W. Van Burén.

Additionally, we find that the deceased victim was obligated to pay $85 per week for two children, Sherita and Darno. The two children Devin and Joscar, born after the divorce are eligible for compensation for loss of support if it can be shown that they were a dependent of the deceased victim. (740 ILCS 45/2(h) (1992).) Loss of earnings are to be determined on the basis of the victim’s average net monthly earnings for the six months immediately preceding the date of injury or on $1,000 per month whichever is less.

The Claimant has had difficulty in proving that the $85 payments were being made, and the victim was supporting the two younger children because the victim operated on a cash basis. No copies of checks were presented that showed that the victim made the required $85 payments, or that any money was being expended for food, clothing, education, medical or shelter expenses for any of the four children. The only evidence in addition to the testimony of the Claimant that the above payments were being made were the two letters. Although the two letters tend to show that the victim paid money to the Claimant, they are insufficient to prove that the victim was meeting his child support obligations of $85 per week during the six-month period preceding the incident or to otherwise prove that the victim was supporting the two younger children.

Although the invoices do tend to indicate the victims business received money within six months of the incident, approximately $3,172.42 of such revenue was for labor, it does not prove the net income of the victim nor does it prove that the victim was providing support, and the extent of the support, to any of the children. Because the amount of support provided by the victim is uncertain, this Court has no way of establishing an award which would be based on the amount of support.

The finding of this Court that the Claimant has failed to substantiate her claim is affirmed and this Courts order of May 18,1990, is affirmed.

Claim denied.


author: Frederick, J.

text:
    (No. 89-CV-0812

      In re Application of Ted S. Charlton

      Order filed March 5, 1990.

      Opinion filed December 3, 1993.

    Ted S. Charlton, pro se, for Claimant.
    Neil F. Hartigan and Roland W. Burris, Attorneys General (James Maher, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This claim arises out of an incident that occurred on April 30, 1988. Claimant, Ted S. Charlton, father of the deceased victim, Angela Charlton, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the “Act.” Ill. Rev. Stat. (1987), ch. 70, par. 71, et seq.

The Court file reflects that on February 14, 1989, a “Notice of Intent to File a Claim” was filed herein on behalf of applicant, Ted S. Charlton, arising from the death of alleged victim, Angela Charlton, on April 30, 1988.

The notice reflected that Angela Charlton was killed by a shotgun blast at close range. It was alleged that the assailant was loading a shotgun in preparation for the return of individuals with whom the assailant had had an argument during a drinking party.

The investigatory report of the Attorney Generals Office noticed that the offender, James Renfro, was apprehended, prosecuted and convicted of involuntary manslaughter and reckless conduct. The investigatory report concluded that involuntary manslaughter was not one of the violent crimes specifically set forth under section 2(c) of the Act, and that therefore, the Claimant had not met a required condition precedent for compensation under the Act.

This Court followed the recommendation of the investigatory report and ruled that the Claimant had not met a required condition precedent for compensation under the Act and denied the claim on March 5,1990.

A review of this Court’s decision was sought by Claimant, Ted S. Charlton. At the hearing conducted by Commissioner Rath, the facts in evidence mirrored those facts set forth in the investigatory report of the Attorney General and in this Court’s prior order. However, since the entry of the order denying the claim, this Court in In re Application of Catherine Smith (1992), 45 Ill. Ct. Cl. 520 (unreported opinion entered on October 30,1992, 90 CV 977), held that circumstances similar to those extant in the case at bar “met the criteria for reckless conduct” which was found to be a crime specifically included in the Crime Victims Compensation Act.

In the case at bar, the assailant was convicted of both involuntary manslaughter and reckless conduct arising from the death of Angela M. Charlton on April 30,1988.

We therefore find:

(1) That on April 30, 1988, the victim was accidentally shot by an offender who was known to her. The incident occurred in an apartment located at 515 S. Pearl, Salem, Illinois. Police investigation revealed that prior to the incident, the offender was assembling the components of a shotgun, when the weapon discharged and struck the victim in the chest. The Marion County Coroners Office ruled the death of the victim to be an accident. The offender was apprehended, prosecuted and convicted of involuntary manslaughter and reckless conduct.

(2) That reckless conduct is one of the violent crimes specifically set forth under Section 2(c) of the Act.

(3) That the Claimant has met the required conditions precedent for compensation under the Act.

(4) That the burial expenses of Angela Charlton were in the sum of $4,478.62. These expenses were paid in full by Angelas parents.

(5) That the Claimant seeks only the funeral expenses incurred by the family in the sum of $4,478.62 paid by Claimant, Ted Charlton, to the Rogers-Atkins Funeral Home in Salem, Illinois.

(6) That no loss of support is claimed. The victim was not employed during the six months prior to the injury.

(7) That no civil suit was filed or intended against the assailant or any third party arising from the death of Angela Charlton.

(8) That section 2(h) of the Act states that a maximum of $3,000 may be awarded, in the case of death, for funeral and burial expenses.

It is therefore ordered that Claimant, Ted S. Charlton, is awarded the sum of $3,000 for funeral expenses for the deceased victim pursuant to the Illinois Crime Victims Compensation Act.


author: POCH, J. Sommer, C.J.

text:
    (No. 90-CV-0570

      In re Application of Mary Joanne Urban

      Opinion filed July 23, 1992.

      Order filed July 23, 1993.

    Gary L. Peterlin, for Claimant.
    Roland W. Burris, Attorney General (James Maher, Assistant Attorney General, of counsel), for Respondent.
   OPINION

POCH, J.

This claim arises out of an incident that occurred on April 2, 1989, at 1423 Prospect Avenue, Peru, Illinois. The Claimant, Mary Joanne Urban, wife of the deceased vietim, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the “Act.” Ill. Rev. Stat. (1989), ch. 70, par. 71, et seq.

The Court had considered the application for benefits and the investigatory report of the Attorney General and had denied the claim on the grounds that the Claimant had not offered documentation to substantiate her claim and that the assailant had been acquitted of the murder of the deceased victim.

The Claimant, through counsel, requested consideration of the denial of her claim and this cause was assigned to a commissioner of this Court for a hearing.

The evidence is undisputed that on April 2, 1989, the decedent and his wife resided in Peru, Illinois. Their daughter had been married to Michael Carter and had divorced. The daughter had custody of the couples children. Michael Carter came to the Urban residence. The Claimant described how Carter came to her home in an intoxicated condition. The decedent told Carter he could not see the children because of his intoxicated state and asked Carter to leave the premises. Carter left after numerous requests to do so but came back one hour later.

When Carter returned, he was armed with a revolver. The victim asked him to leave a number of times. The victim called the police. The victim attempted to take the gun from Carter and was able to take the gun away from Carter. The victim and Carter continued to struggle which continued from the house onto the porch. The victim was able to throw the gun onto the roof of the garage. The victim was able to get back into his home and lock the door.

The victim suffered a fatal heart attack. He had a history of cardiac problems including a prior heart attack. The struggle with Carter was veiy vigorous. It is uncontradicted that the assailant had forced his way into the victims home. The victim was in fear for his safety and that of his wife. The victims death resulted from the assault which caused the fatal heart attack according to the medical report of the decedents physician.

The Claimants deceased husband, Richard P. Urban, was a victim of a violent crime as defined in Section 72(c) of the Act. The Claimant has met the burden of proving the death was the result of a violent crime. In Re Application of Michael DeBartolo (1982), 36 Ill. Ct. Cl. 442.

The Claimant has met all the eligibility requirements of section 76.1 of the Act and is entitled to compensation because the assault was the proximate cause of the victims death. (In Re Application of Hamit Jusufi (1976), 31 Ill. Ct. Cl. 631.) The Claimant has met the burden of proving that the cause of death was the proximate result of a violent crime and is, therefore, entitled to compensation pursuant to the Act. In Re Application of Jean Rosenbaum (1979), 32 Ill. Ct. Cl. 1086.

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

The Claimant seeks compensation for medical expense, hospital expense and funeral expense associated with the death of her husband. The victim was retired at the time of his death and was receiving pension benefits of $729.06 per month. The decedent was 56 years of age at the time of his death. Based upon life expectancy tables, the decedent if he had lived would have continued to receive his pension benefits for 20 years. The loss of support to the Claimant of the decedents pension benefits exceeds the maximum amount recoverable under the Act.

The Claimant is entitled to the maximum amount that can be awarded under the Act which is $25,000. The Claimants attorney seeks award of attorney fees and reimbursement of costs advanced to be paid out of the award made to the Claimant. Pursuant to section 82 of the Act, an attorney may not receive payment for services in preparing the application or presenting the application to this Court. Fees may be charged only for representing the applicant at a hearing with such amount approved by the Court as reasonable.

The Claimants attorney has filed an itemized petition for fees and for costs advanced on behalf of the Claimant. This Court finds that of the time spent by Claimants counsel, 15 hours relate directly to the representation of the Claimant at the hearing. The Claimants attorney is authorized to receive payment of the sum of $1,500 for representation of Claimant at the hearing and be reimbursed for costs advanced of $562.90.

It is hereby ordered that the Claimant Mary Joanne Urban be awarded the sum of $25,000 to be paid in one lump sum.

The Claimants attorney may receive attorney fees from the Claimants award in the sum of $1,500 and he is also to be reimbursed the sum of $562.90 in costs and expenses advanced on behalf of Claimant.

ORDER

Sommer, C.J.

It is ordered that the motion to waive/discharge the lien the State of Illinois may have pursuant to the Crime Victims Compensation Act in the settlement of cause 90-L-84 filed in La Salle County, Thirteenth Judicial Circuit Court of the State of Illinois against the settlement amount of $60,000 is hereby granted and it is further hereby ordered that any said lien is waived/discharged.


author: Frederick, J. Frederick, J.

text:
    (No. 90-CV-0954

      In re Application of Jose L. Garcia

      Order filed April 3, 1990.

      Order filed April 6, 1993.

      Order filed July 27, 1993.

    Glenn Chertokow, for Claimant.
    Neil F. Hartigan and Roland W. Burris, Attorneys General (Paul H. Cho, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

On April 3, 1990, the Court dismissed this claim on the grounds that Claimant had failed to file his notice of intent to file a claim and his application within the statutory time periods to claim benefits under the Crime Victims Compensation Act. Ill. Rev. Stat., ch. 70, par. 71 et seq., hereinafter referred to as the Act.

Section 6.1 of the Act at that time provided in pertinent part that a person is entitled to compensation under the Act if:

“(a) within 6 months of the occurrence of the crime he files a notice of intent to file a claim with the Attorney General and, within one year of the occurrence of the crime upon which the claim is based, he files an application, under oath, with the Court of Claims ° * °. Upon good cause shown, the Court of Claims may extend the time for filing the notice of intent to file a claim and application for a period of time not exceeding one year.”

This Court has consistently given a strict interpretation to the statutes prescribing and limiting our jurisdiction. (Beene v. State (1984), 36 Ill. Ct. Cl. 431; Schenk v. State (1990), 43 Ill. Ct. Cl. 437.) In Schenk, supra, this Court denied a claim where the intent to file claim was filed more than two years after the claim. The Court held that the maximum time to file notice of intent is 18 months which includes any extensions. The statute does not grant an exception to the limitations period for an excuse of lack of information regarding the program.

After the original denial of the claim, the Claimant requested a hearing. The cause was duly tried by Commissioner Michael Kane who adduced the following evidence. Enrique Garcia, age 15, was shot on November 29, 1987, and died as a result of those gunshot wounds. He was the victim of a violent crime. The Claimant, Jose Garcia, is the brother-in-law of the decedent and he paid for the burial of Enrique Garcia. According to the testimony of both the Claimant and his wife, Yolanda Garcia, the funeral director who handled the arrangements informed Jose and Yolanda Garcia that there was compensation available through the State if they would make application through the Attorney Generals Office. The Claimant went to the Attorney General’s Office, received forms from the Attorney General’s Office which he and his wife filled out. On December 22, 1987, Jose Garcia signed the forms and returned them to the Attorney Generals Office. The document he signed is entitled “Grime Victim Compensation Application.” At the top of the first page of this document, it states as follows: “Return to: Illinois Attorney Generals Office, Crime Victim Compensation Program, 174 West Randolph Street-Third Floor, Chicago, Illinois, 60601.” On the last page of this four-page document, the following language is contained: “You have only one year from date of the criminal incident in which to file this application with the Attorney General.” Pursuant to the information and the instructions the Garcias received, they returned the form to the Attorney General s Office where they were told that the processing of this document would take approximately one year. In January of 1989, slightly longer than a year after the filing, the Garcias became concerned about their application and sought information from the Attorney General s Office about the application. At that point they were told that there was no record of their ever having filed an application. They continued to seek information from the Attorney Generals Office with no success. In January of 1990, they filed a petition to extend the time with which to file and this petition resulted in the order dated April 3,1990.

At the hearing, Mr. Mohr, the assistant Attorney General, acknowledged that in his file he had the application which was signed and dated on December 22,1987, which is within the year permitted by the Act and also within the six-month period required by the notice requirements. The Attorney General acknowledged that the Claimant filed the application within two months of the commission of the crime. He further acknowledged that the Attorney General’s forms indicated to Claimant that the forms should be completed and returned to the Attorney General. Mr. Mohr stated, “The problem is that the people 060 the individuals come to our office and we give them the forms and I think it’s our responsibility to file them because I think in a lot of cases they don’t know that they do have a duty on their own part to file the application.”

The law specifically requires a notice of intent to file a claim be filed with the Attorney General within six months of the occurrence of the crime and then an application must be filed within one year of the occurrence with the Court of Claims. Unfortunately, the very documents which the Claimant received from the Attorney General’s Office specifically stated that the documents are to be returned to the Attorney General’s Office and give the impression that by doing so, the Claimant has complied with the law. There is nothing in the instructions or the application which indicates that the documents must be filed with the Court of Claims or that anything else has to be done in regards to a crime victim application. The State has acknowledged a responsibility to file the claims. It is clear from these facts that the Garcias acted with deliberate speed and in good faith.

This is an unusual and difficult case. It is also true that difficult cases make for bad law. We are determined not to make bad law. However, because we believe this situation will not be repeated and is limited to the facts of this case, we believe we can reverse our prior ruling and be consistent with our prior rulings on jurisdiction. The Attorney General originally indicated there was no record of the Garcia’s application. However, at trial, the Attorney General acknowledged that an application had been found in their files with indications showing such documents were filed with the Attorney General within two months of the date of the crime. The Attorney General did not file the claim. Because the documents were actually filed with the Attorney General and do actually exist, we believe this is a case where there is a constructive filing of the claim and by allowing this claim, we are not extending the statute of limitations. However, in the future and hereinafter, the public is put on notice that notwithstanding the language on forms, it is the law that the application must be filed by the claimant with the Court of Claims no later than 18 months from the date of the occurrence, such 18 months including any extensions.

We will not in the future consider constructive filings but will make all rulings strictly on the statute of limitations and the only determination will be whether or not the notice of intent was filed within the statutory time limit with the Attorney General and whether the application was filed with the Court of Claims within the statutory time limit.

Wherefore, it is ordered:

(A) That the Attorney General shall file an investigatory report indicating the amount of the benefits which the Court should award to Claimant.

(B) That the Attorney General shall purge the forms indicating applications shall be returned to the Attorney General if such forms are still in use.

OPINION

Frederick, J.

This claim arises out of an incident that occurred on November 29, 1987. Jose L. Garcia, brother-in-law of the deceased victim, Enrique Garcia, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. (1985), ch. 70, par. 71, et seq.

This Court has carefully considered the application for benefits submitted on January 11, 1990, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

(1) That on November 29, 1987, the Claimants deceased brother-in-law, Enrique Garcia, age 16, was a victim of a violent crime as defined in section 2(c) of the Act, to wit: murder. Ill. Rev. Stat. (1985), ch. 38, par. 9—1.

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

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

(4) That the Claimant incurred funeral and burial expenses in the amount of $3,743.56, all of which has been paid. Pursuant to section 2(h) of the Act, funeral and burial expenses are compensable to a maximum amount of $2,000.

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

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

It is hereby ordered that the sum of $2,000 (two thousand dollars) be and is hereby awarded to Jose L. Garcia, brother-in-law of Enrique Garcia, an innocent victim of a violent crime.


author: Montana, C.J. JANN, J.

text:
    (No. 91-CV-0354

      In re Application of Crystal Y. and Virginia J. Patton

      Opinion filed November 6, 1991.

      Order filed December 3, 1993.

    Crystal Y. Patton and Virginia J. Patton, pro se, for Claimants.
    Roland W. Burris, Attorney General (James Maher and Charles Davis, Jr., Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Montana, C.J.

This claim arises out of an incident that occurred on July 7, 1990. Crystal Y. Patton, wife of the deceased victim, Charlie Lee Patton, and Virginia J. Patton, mother of the victims minor child, Charles Lemont Patton, seek compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. (1989), ch. 70, par. 71, et seq.

This Court has carefully considered the applications for benefits submitted on August 10, 1990, and August 17, 1990, respectively, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the applications. Based upon these documents and other evidence submitted to the Court, the Court finds:

(1) That on July 7,1990, Charlie Lee Patton, age 39, was a victim of a violent crime as defined in section 2(c) of the Act, to wit: first degree murder. Ill. Rev. Stat. (1989), ch. 38, par. 9—1.

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

(3) That the Claimant, Crystal Y. Patton, seeks compensation for funeral expenses and for loss of support for herself and the victims minor son, Isaac Lee Patton. The Claimant, Virginia J. Patton, seeks compensation for loss of support on behalf of the victims minor child, Charles Lemont Patton.

(4) That the Claimant, Crystal Y. Patton, incurred funeral and burial expenses in the amount of $4,967.23, all of which had been paid. Pursuant to section 2(h) of the Act, funeral and burial expenses are compensable to a maximum amount of $3,000.

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

(6) That the victim’s average net monthly earnings were $1,312.53. The victim was 39 years of age at the time of the crime. According to Vital Statistics of the United States, Life Tables, volume II (U.S. Department of Health, Education and Human Services 1984), his life expectancy would have been 74.2 years. The projected loss of support for 35.2 years is $422,400, which is in excess of $25,000 which is the maximum amount compensable under section 10.1(f) of the Act.

(7) That section 2(h) of the Act further states that if a divorced applicant is claiming loss of support for a minor child of the deceased, the amount of support for each child shall be based on the amount of support the minor child received pursuant to the degree for the six months prior to the date of the deceased victims death.

(8) That under the divorce decree in Charlie Patton v. Virginia Patton, No. 84 D 0024999, filed in the circuit court of Cook County, Illinois, the victim was ordered to pay child support for his minor child, Charles Lemont Patton. Available evidence indicates that the victim met his child support obligations at an average of $90 per month.

(9) That the victims minor child, Charles Lemont Patton, born March 30, 1982, was eight years, three months of age at the time of the incident. Charles Lemont Patton will attain the age of majority on March 30, 2000, which is 117 months after the incident.

(10) That based upon support payments of $90 per month, the projected loss of support for 117 months, the maximum period for loss of support for the victims child, is $10,530.

(11) That pursuant to section 10.1(e) of the Act, this Court must deduct from all claims, the amount of benefits, payments or awards payable under the Workers’ Compensation Act, Dram Shop Act, Federal Medicare, State Public Aid, Federal Social Security Administration burial benefits, Veterans Administration burial benefits, health insurance, or from any other source, except annuities, pension plans, Federal Social Security payments payable to dependents of the victim and the net proceeds of the first $25,000 (twenty-five thousand dollars) of life insurance that would inure to the benefit of the applicant.

(12) That the Claimant, Crystal Y. Patton, has received $43,000 from a life insurance policy as a result of the victims death, $18,000 of which can be counted as an applicable deduction under section 10.1(e) of the Act.

(13) The Claimant, Virginia J. Patton, has received no reimbursements that can be counted as an applicable deduction under section 10.1(e) of the Act.

(14) The Claimant, Crystal Y. Patton, net loss can be based upon the following:

Projected loss of support $422,400.00

Maximum Funeral Expenses 3,000.00

Subtotal $425,400.00

Less Applicable Life Insurance -18,000.00

Total $407,400.00

(15) That after making all of the applicable deductions under the Act, the net loss of the Claimant, Crystal Y. Patton, is in excess of the $25,000 maximum award allowed in section 10.1(f) of the Act.

(16) The Claimant, Virginia J. Patton, net loss can be based upon the following:

Projected Loss of Child Support $10,530

(17) That section 10.1(f) of the Act states that if the pecuniary loss is in excess of $25,000, the maximum amount allowed, the award shall be divided in proportion to the amount of actual loss among the claimants entitled to compensation.

(18) The Claimants’ net loss should be prorated respectively in accordance with the percentage of the compensable net loss. The Claimants’ net compensable loss is based upon the following:

Total Net Loss

% of Loss

Compensable Amount

Crystal Y. Patton $407,400.00 97.5 $24,375.00

Virginia J. Patton 10,530.00 2.5 625.00

Total $417,930.00 100.0 $25,000.00

(19) That the Claimant Crystal Y. Patton, has complied with all pertinent provisions of the Act and qualifies for compensation thereunder.

(20) That the Claimant Virginia J. Patton, has complied with all pertinent provisions of the Act and qualifies for compensation thereunder.

(21) That the interest of the Claimant, Crystal Y. Patton, would be best served if the award hereunder would be paid pursuant to the installment provision of section 10.1 of the Act.

It is hereby ordered that the sum of $625 (six hundred twenty-five dollars) be and is hereby awarded to Virginia J. Patton, on behalf of Charles Lemont Patton, minor child of the deceased victim, Charlie Lee Patton, an innocent victim of a violent crime.

It is further ordered that the sum of $24,375 (twenty-four thousand three hundred seventy-five dollars) be and is hereby awarded to Crystal Y. Patton, wife of the deceased victim, Charlie Lee Patton, an innocent victim of a violent crime, to be paid and disbursed to her as follows:

(a) $3,000 (three thousand dollars) to be paid to Crystal Y. Patton in a lump sum;

(b) $12,375 (twelve thousand three hundred seventy-five dollars) to be paid to Crystal Y. Patton for herself and for the use and benefit of the victims minor child, Isaac Lee Patton in a lump sum;

(c) 9 (nine) equal monthly payments of $1,000 (one thousand dollars) each to be paid to Crystal Y. Patton for the use and benefit of the victims minor child, Isaac Lee Patton;

(d) In the event of the death or marriage of the victims minor children, it is the duty of the personal representative of the Claimant to inform this Court in writing of such death or marriage for the purpose of the possible modification of the award.

ORDER

JANN, J.

This claim for compensation pursuant to the Crime Victims Compensation Act (740 ILCS 45/1 et seq.) (hereinafter the “Act”) arises out of an incident that caused the death of Charlie Lee Patton on July 7, 1990. Claimant, Crystal Y. Patton, wife of the deceased victim, seeks compensation for funeral expenses, loss of support and loss of support for Isaac Lee Patton, a minor son of the deceased victim. Claimant Virginia J. Patton seeks compensation for loss of support for Charles Lemont Patton, a minor son of the deceased victim.

On November 6,1991, the Court entered an opinion awarding a total of $25,000. The Court awarded $24,375 to Crystal Y. Patton and Isaac Lee Patton for loss of support and funeral expenses, and $625 to Virginia J. Patton on behalf of Charles Lemont Patton (hereinafter “Charles”). The award for Charles was based upon a child support order requiring the victim to pay child support in the sum of $90 per month. The total net loss was found to be $407,400, of which the loss attributable to the support obligation of Charles was $10,530 or 2.5% of the total loss. The Court divided the maximum award of $25,000 in proportion to the actual loss. On November 13, 1991, Virginia Patton requested a hearing on this claim, specifically on the issue of whether Charles should receive an award higher than $625. Crystal Patton did not seek review of the opinion.

A hearing was conducted on June 10, 1992, at which Virginia Patton appeared. Crystal Patton did not appear. Virginia Patton testified that the deceased victim was giving Charles $50 per week after the divorce between the victim and Virginia. She stated that she did not need to go back to court to have the child support obligation of $90 per month increased because the deceased victim was giving her $300 to $400 a month for Charles. The victim was paying the costs of Charles’ schooling, clothing, sports and health care. The payments by the victim to Virginia on behalf of Charles were made in cash. According to Virginia, the child support order did not specify that the victim was required to provide health insurance or pay health care costs. Neither Claimant nor the Attorney General provided a copy of the child support order and it is not part of the record. Virginia stated that she could document that the victim was paying the cost of health insurance for Charles.

The hearing was continued and Claimant Virginia Patton was given an opportunity to obtain proof, via witnesses or documents, that the deceased victim was providing health insurance to Charles and that the victim was providing additional money or benefits to him.

The continued hearing was held on May 11, 1993. Claimant Virginia Patton appeared, but Claimant Crystal Patton did not appear. Virginia Patton presented three documents for consideration by the Court. No witnesses appeared and Virginia Patton’s testimony was consistent with her prior statements.

Claimant’s Exhibit No. 1 is a written statement by Constance Jackson and her signature is notarized. Jackson indicates that she recalls, “times when Charles Patton gave his ex-wife $200 to $300 dollars at a time.” Jackson remembers that the victim provided for his son (Charles) in every way possible. Claimants Exhibit No. 2 is a written statement by Amy G. Hernandez, a teacher of Charles Lemont Patton. The statement does not provide any information on financial support of the victims son.

Claimants Exhibit No. 3 is a letter from C. A. Anderson, manager of benefits services for the Chicago Transit Authority (CTA). The letter indicates that Charles would be covered by health benefits (COBRA benefits) for a period of 90 days after the death of his father. The letter implies that Charles was covered by his fathers health plan at the CTA. The letter does not indicate whether the deceased victim paid for the coverage and at what cost.

Section 2(h) of the Act defines pecuniary loss for which the applicant may seek compensation. The section specifies:

“If a divorced or legally separated applicant is claiming loss of support for a minor child of the deceased, the amount of support for each child shall be based either on the amount of support the minor child received pursuant to the judgment for the 6 months prior to the date of the deceased victim’s death 0 ° 740 ILCS 45/2(h). (Emphasis added.)

Although the divorce decree is not part of the record, Claimant and the Attorney General s office agree that a divorce decree imposed an obligation on the deceased victim to pay $90 in child support for Charles. Regardless of whether the victim voluntarily provided additional financial support to Charles, the victim was not under a legal obligation to do so for the six months prior to the date of his death. Had the deceased victim survived, his legal obligation for support would have been for only $90 per month. The Court need not address the issue of whether Claimant Virginia Patton can receive a higher award on. behalf of Charles if the victim was providing financial support in excess of a court child support order because the exhibits and the testimony do not prove that the victim provided the additional support in any specific amount within six months of victims death.

We hereby deny Claimant Virginia Pattons petition for additional compensation to the deceased’s son, Charles Lemont Patton for the foregoing reasons. The Court’s opinion of November 6, 1991, shall stand as entered and this cause is hereby dismissed with prejudice.


text:
    (No. 92-CV-0728

      In re Application of Leonard Thomas Casey

      Order filed March 24, 1992.

      Opinion filed October 19, 1993.

    Leonard Thomas Casey, pro se, for Claimant.
    Roland W. Burris, Attorney General (Charles A. Davis, Jr., Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This claim arises out of an incident that occurred on August 31, 1991. Leonard Thomas Casey, son of the deceased victim, Leonard Casey, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. (1989), ch. 70, section 71, et seq.

On March 24, 1992, this Court denied the claim pursuant to section 80.1(a) of the Act based upon the victim’s contribution to his own injury.

Claimant made a timely request for a hearing and a hearing was subsequently held before the Commissioner assigned to the case.

On August 31, 1991, Leonard Casey was stabbed by an offender who was known to him. The incident occurred at Mr. Caseys home at 3852 S. Calumet, Chicago, Illinois. The offender told the police investigators that Mr. Casey had supplied her with illegal narcotics in exchange for a sexual act. The offender stated that at the completion of the act, Mr. Casey refused to provide any additional narcotics. The offender obtained a knife and fatally stabbed Mr. Casey. The offender was apprehended and charged with first degree murder.

At the hearing, Claimant, Leonard Thomas Casey, son of the deceased victim, testified. Claimant disputed the findings of the Court because the statements of the offender constituted the only evidence of Mr. Caseys contributory misconduct. Claimant testified that the offenders statements were not credible and should not be considered by the Court.

The only other evidence presented at the hearing in support of Mr. Caseys alleged drug involvement was a scale of the kind often used for weighing narcotics which was found in Mr. Caseys apartment.

The Commissioner suggested to the parties that the medical examiners postmortem examination report of Mr. Casey might provide evidence and gave the parties ample opportunity to supplement the file. However, neither party obtained nor produced a copy of the medical examiners report. The Commissioner then requested a copy of the report and the toxicology analysis of the victims blood revealed the presence of benzoylecgonine, a cocaine metabolite.

Section 80.1(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. In Re Application of Fort (1990), 42 Ill. Ct. Cl. 392.

In this case, the Respondent relies on statements made by the offender to support the claim that the victim was engaged in criminal activity at the time of the murder, and that the Claimant is, therefore, ineligible for compensation. Claimant disputes the credibility of the offenders statements.

The statements made by the offender do not mitigate her guilt and are therefore not self-serving. This Court can therefore conclude that the statements are more probably true than not true. The physical evidence of the scale found at the scene and the toxicology report provide circumstantial evidence which further bolsters the credibility of the offenders statements.

Claimant also questions the Courts finding because there were no narcotics found at the scene of the incident. Since the offender admitted that she stabbed Mr. Casey because he refused to provide any more narcotics for her use, the Court can assume that the offender would have taken any narcotics when she fled the scene of the incident.

In addition, the fact that Mr. Casey had by-products of cocaine metabolism in his blood at the time of his death further supports the Respondents position that Mr. Casey was engaged in contributory misconduct.

We therefore find that Mr. Casey’s conduct contributed to his death to such an extent as to warrant that the Claimant be denied entitlement to compensation. The claim does not meet a required condition precedent for compensation under the Act.

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


author: Mitchell, J. Sommer, C.J.

text:
    (No. 93-CV-0257

      In re Application of Peggy A. Cherrington

      Opinion filed May 6, 1993.

      Opinion filed May 31, 1994.

    Weiner & McAuliffe, Ltd. (Thomas W. Weber, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Charles A. Davis, Jr., and Paul H. Cho, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Mitchell, J.

This claim arises out of an incident that occurred on April 25, 1992. The Claimant, Peggy A. Cherrington, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. (1991), ch. 70, par. 71, et seq.

This Court has carefully considered the application for benefits submitted on July 29, 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 April 25, 1992, Peggy A. Cherrington, age 34, was a victim of a violent crime as defined in section 2(c) of the Act, to wit: driving under the influence of intoxicating liquor or narcotic drugs. Ill. Rev. Stat. (1991), ch. 95½, par. 11—501.

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

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

(4) That after considering insurance and other sources of recovery, the Claimants net compensable loss for medical/hospital expenses is $3,020.96. To date, the Claimant has paid $127.25 towards this amount.

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

(6) That the Claimants average net monthly earnings for the six months prior to the incident were $1,887. Claimant was disabled and unable to work for a period of 2 months and 10 working days. Based upon $1,000 per month, the maximum compensation for loss of earnings is $2,454.50.

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

(8) That the Claimant’s net compensable loss is based on the following:

Compensable Amount

Medical Practice Plan $2,893.21

Paid Medical Expenses/Compensable Loss of Earnings 2,582.25

Total $5,475.46

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

(10) That the Claimant, Peggy A. Cherrington, has filed a civil action, Peggy A. Cherrington v. Michael P. Matthews, et al., No. 92-L-15668 in the circuit court of Will County, Illinois, as a result of the incident. The Claimant, by informing the Attorney Generals office of her pending civil suit, has acknowledged her responsibility to further notify the Attorney General’s office of the final disposition of the civil action, pursuant to section 17 of the Act.

(11) That on December 7, 1992, Medical Practice Plan filed a physician’s lien with the Court of Claims concerning the Claimant’s outstanding medical expenses. The Court hereby orders direct payment to the provider in this instant case.

It is hereby ordered that the sum of $2,582.25 (two thousand five hundred eighty-two dollars and twenty-five cents) be and is hereby awarded to Peggy A. Cherrington, an innocent victim of a violent crime.

It is further ordered that the sum of $2,893.21 (two thousand eight hundred ninety-three dollars and twenty-one cents) be and is hereby awarded to Medical Practice Plan for the medical expenses of Peggy A. Cherrington.

OPINION

Sommer, C.J.

This matter arises on the Claimants motion to reopen and adjudicate the victim’s assistance lien.

On May 6, 1993, this Court awarded $5,475.46 to the Claimant under the provisions of the Crime Victims Compensation Act. (740 ILCS 45/1 et seq.) The State retained a lien against any proceeds of recoveries by the victim against the perpetrators or other parties involved in the crime. 740 ILCS 45/17(c).

The Claimant has recovered $27,000 from the dram shop insurer, and proposes to pro-rate that amount among the insurance companies that have paid the victim for various damages and the Crime Victim’s fund. The Attorney General has refused to agree to the pro-ration.

The Crime Victims Compensation Act states that “compensation under this Act is a secondary source of compensation and the applicant must show that he has exhausted the benefits reasonably available under the Criminal Victims’ Escrow Account Act or any governmental or medical or health insurance programs, including * * * life, health, accident, or liability insurance.” 740 ILCS 45/10.1(g).

The Crime Victims Compensation Act further states: “Where compensation is awarded under this Act and the person receiving same also receives any sum required to be, and that has not been deducted under Section 10.1, he shall refund to the State the amount of the compensation paid to him which would have been deducted at the time the award was made.” 740 ILCS 45717(d). [Emphasis added.]

Under the law, as cited above, crime victims compensation is a secondary source of compensation available only after having exhausted all other sources of payment, such as insurance, and the repayment of crime victims compensation is mandatory if amounts which have been recently recovered would have been deducted when computing the original award, had these amounts then been available.

In the present claim, had the dram shop recovery occurred before the crime victims compensation had been paid, the Claimant would have had $5,475.46 deducted from her potential award and would have received nothing.

Therefore, the position of the Attorney General in refusing to compromise the crime victims compensation lien is correct. It is therefore ordered that the Claimants motion to re-open case and adjudicate victims assistance lien is denied.


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

text:
    (No. 93-CV-2086

      In re Application of Forest L. Shook

      Opinion filed December 30, 1993.

      Opinion filed March 31, 1994.

    Keehner, Cannaday & Katz, P.C. (Jim D. Keehner, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Paul H. Cho, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

This claim arises out of an incident that occurred on November 26, 1992. The Claimant, Forest L. Shook, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. (1991), ch. 70, par. 71, et seq.

This Court has carefully considered the application for benefits submitted on February 10, 1993, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

(1) That on November 26, 1992, Forest L. Shook, age 30, was a victim of a violent crime as defined in section 2(c) of the Act, to wit: aggravated battery. Ill. Rev. Stat. (1991), ch. 38, par. 12 — 4.

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

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

(4) That after considering insurance and other sources of recovery, the Claimants net compensable loss for medical/hospital expenses is $3,323.05. To date, the Claimant has paid $45 towards this amount.

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

(6) That the Claimants average net monthly earnings for the six months prior to the incident were $1,078.22. Claimant was disabled and unable to work for a period of 14 working days. Based upon $1,000 per month, the maximum compensation for loss of earnings is $636.30.

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

(8) That the Claimant’s net compensable loss is based on the following:

Compensable Amount

St. Elizabeth Hospital $2,536.30

Belleville Radiologists, Ltd. 278.75

Medstar Ambulance, Inc. 253.00

Neurological Service-Belleville 210.00

Paid Medical Expenses/Compensable

Loss of Earnings 681.30

Total $3,959.35

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

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

It is hereby ordered that the sum of $681.30 (six hundred eighty-one dollars and thirty cents) be and is hereby awarded to Forest L. Shook, an innocent victim of a violent crime.

It is further ordered that the sum of $2,536.30 (two thousand five hundred thirty-six dollars and thirty cents) be and is hereby awarded to St. Elizabeths Hospital and Forest L. Shook.

It is further ordered that the sum of $278.75 (two hundred seventy-eight dollars and seventy-five cents) be and is hereby awarded to Belleville Radiologists, Ltd. and Forest L. Shook.

It is further ordered that the sum of $253 (two hundred fifty-three dollars) be and is hereby awarded to Medstar Ambulance, Inc. and Forest L. Shook.

It is further ordered that the sum of $210 (two hundred ten dollars) be and is hereby awarded to Neurological Service-Belleville and Forest L. Shook.

OPINION

Sommer, C.J.

On December 30, 1993, this Court issued an opinion granting compensation to the Claimant pursuant to the provisions of the Crime Victims Compensation Act. 740 ILCS 45/1 et seq.

On January 10, 1994, this Court received a letter from the Claimants attorney indicating that a settlement of a dram shop action in the amount of $4,500 might be available to the Claimant. The letter asks that the Court waive the lien created by section 17 of the Act, so as to allow the attorney and the Claimant to keep part or all of the dram shop award.

When this Court has been asked to waive the lien after an award has been made, a distinction has been made between those claims which were fully compensated by the State as measured by the terms of the Act and those which were not. In re Application of John Lavorini (1989), 42 Ill. Ct. Cl. 390; In re Application of Setuko M. Cobb (1992), 44 Ill. Ct. Cl. 438.

This distinction reflects the situation which would occur if the dram shop award or other award were to be made before the crime victims award was made. In some situations the amount of the loss as measured by the Act is high and not fully compensated, usually due to the $25,000 limit on any award. In other situations, the amount of loss is fully compensated under the terms of the Act. Where the amount of loss is fully compensated, the lien for any recovery from a dram shop action remains in effect.

In the present claim the victim was fully compensated for his loss as measured by the Act, therefore, under the ruling of Lavorini, supra, this Court is unable to waive the lien.

The issue remaining is whether the gross amount of the dram shop recovery must be returned to the State, or whether any expenses of obtaining the recovery be retained. The Act speaks of monies received by the Claimant. (740 ILCS 45/17d.) We find that expenses, including attorney’s fees, may be deducted from the amount returnable to the State under the lien, as the Claimant receives only the net amount. The reasoning is that without such expenses, no recovery would be made. It is therefore ordered that the net amount of the dram shop recovery after expenses be returned to the State as per section 17 of the Act.


author: Burke, J. Frederick, J.

text:
    (No. 77-CC-2021
    Shirley Mae McClellan, Administrator of the Estate of Charles Edward McClellan, Deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 30, 1988.

      Order on petition for rehearing filed June 27, 1994.

    Spomer & Spomer (W. C. Spomer, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Claire Gibson Taylor, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

This cause coming to be heard upon the report of the Commissioner, after hearing before said Commissioner, and this Court being fully advised in the premises, finds that the Claimant is the widow and administrator of the decedents estate. The decedent was killed on September 10, 1977, as a result of a tractor accident at the Menard Correctional Center. Claimant brings this action for wrongful death pursuant to section 22 — 1 of the Court of Claims Act. 705 ILCS 505/22 — 1.

Claimant alleges that at the time of decedents death he was exercising due care and caution for the safety of his person. Claimant further alleges that the tractor furnished to decedent was dangerously defective because the brakes were inoperable and it was not equipped with a roll bar and that the Respondent knew or should have known of the tractors defective condition.

Claimant and the decedent were married December 27, 1976, and no children were bom of the marriage. The decedent had five adult children by a previous marriage. Claimant testified that prior to the decedent’s incarceration at Menard Correctional Center on January 10, 1977, the decedent did farm work, construction work and was a minister. Decedent graduated high school and completed two years of college. Decedent earned approximately six thousand dollars ($6,000) in the year preceding his death. Claimant further testified that decedent provided his children with advice, communication, and financial support. Decedent was a good husband who took care of his home and did repairs. Claimant stated decedent was careful in his habits and had been observed operating tractors in a careful manner in the performance of agricultural pursuits.

Claimant called Chesley W. Stevens as a witness to testify as to the condition of the tractor operated by the decedent at the time of his death. Mr. Stevens operated a welding and fabrication shop in the city of Cairo, Illinois. He had installed roll-over protective devices on tractors, jeeps, and pick-up trucks. Mr. Stevens was familiar with the type of tractor operated by the decedent at the time of his death. The tractor did not have a roll bar. A roll bar protective system could have been affixed or attached to the tractor, and such a system would have cost approximately $300 in labor and materials in 1977. A seat belt could have also been installed on the tractor according to the witness. The witness had attached seat belts and three roll bars on tractors manufactured prior to 1976.

The parties stipulated to the admission of certain documents and things in evidence including the departmental report identified as Respondents exhibit “I.” The scene of the accident could have been viewed from the Menard Psychiatric Unit. Resident David Carlson of that unit claimed to have seen the accident which resulted in McClellans death. Carlson did not testify at the hearing in this case. The investigation report reveals that Carlson claimed that a red pick-up truck with a spotlight on top of the cab forced McClellans tractor from the road into a deep ditch where it overturned. The internal investigation conducted by the Department of Corrections authorities revealed that the pick-up truck described by Carlson was not used on the day of McClellans death. Indeed, there was no institutional vehicle being driven on the farm when McClellans death occurred.

The Claimant argued in the alternative that liability on the part of the Respondent is established on two additional grounds. The first is that the State did not furnish the decedent a safe place to work and safe equipment. Secondly, the decedent was forced off the farm road by a vehicle owned and operated by the Respondent.

As to the Respondents second point, prima facie evidence of the statement of Carlson is included in the departmental report which was admitted as set forth above. The result of the internal investigation with respect to the statement of Carlson was offered and received by this Court in accordance with that stipulation. Accordingly, there is no preponderance of evidence to establish the validity of the statement by resident Carlson that decedents tractor was run off the road by an institutional pick-up truck. Claimant has failed to meet her burden of proof that decedents death was caused by the operation of an institutional pick-up truck.

As to the alternative claim that the death was due to the failure of the Respondent to provide a safety belt and roll bar on the farm tractor, we do not agree. The departmental report previously referred to revealed that the tractor being operated by the decedent at the time of his death was in good condition mechanically and had good brakes. The road upon which the tractor was being operated was in good condition and not in need of repairs. Claimant offered no evidence concerning the condition of the tractor being operated by the decedent except to point out that it was not equipped with a roll bar or seat belt. Claimant places great reliance on the case of Camenzind v. Freeland Furniture Company (1918), 89 Oregon 158, 174 Pac. 139. We find that this case is not helpful in deciding the issues in this case. Claimant in this case simply produced no evidence that the tractor in question was defective, unusually dangerous, or violated any applicable State or Federal regulations. No evidence was presented which would indicate that the tractor being operated by the decedent at the time of his death presented any peculiar or unusual risk to the operator.

The Respondent is not an insurer of the safety of persons imprisoned by the Department of Corrections. There is nothing in the record to indicate that the tractor was defective or that the condition of the tractors being used generally in the agricultural industry would have given rise to an extraordinary duty on the part of the Respondent to provide protective security devices referred to by the Claimant.

Accordingly, we find in favor of the Respondent and against the Claimant on the issue of liability in this case.

ORDER

Frederick, J.

This cause comes on the Claimant’s petition for rehearing, and the Court having reviewed the court file and opinion, and the Court being fully advised in the premises, therefore, it is ordered that the petition for rehearing is denied.