author: Montana, G.J.

text:
    (No. 87-CC-2150
    Warren Harris, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 22, 1989.

      Order filed May 25, 1989.

    Warren Harris, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz and Kimberly Dahlen, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Montana, G.J.

Claimant filed his claim seeking damages against the Illinois Department of Corrections for loss of his legal transcripts and documents on February 23, 1987. Claimant alleged that in June of 1986, when he was transferred from Joliet to Danville, the Department of Corrections inventoried his legal papers, stored them, but then lost the documents. He claimed $5,000 in damages for loss of his legal papers. The State raised an affirmative defense that a setoff against a crime victim’s award for $1,652.95 must be made against any recovery by Claimant.

Trial was held before the Commissioner on November 5, 1987. The evidence consists of the transcript of evidence, Respondent’s Exhibit 1, the departmental report, Claimant’s Exhibit 1 through 9, and the crime victim’s award order in Howard v. State, 32 Ill. Ct. Cl. 1020. This cause has been fully briefed by both parties.

THE FACTS

In May of 1986, Claimant was an inmate with the Illinois Department of Corrections. Claimant was transported to Chicago to testify in Federal court and was staying at the prison in Joliet. On June 17, 1986, all of Claimant’s personal property, including his legal papers, were packed for Claimant’s trip to the prison in Danville, Illinois. The personal property was packed by Officer J.H. and inventoried. Claimant received the pink copy of the inventory and the yellow copy went with the property. The inventory record, Claimant’s Exhibit 1, which was corroborated by the State’s departmental report, shows as inventoried one transcript and one stack of legal papers.

Claimant testified his property consisted of his court transcript, one stack of legal papers in a double garbage bag, some cosmetics, and a suit and shirt.

When Claimant arrived at the Danville prison on June 18, 1986, and was called in to receive his personal property, he noticed his bag of legal papers was missing. The officials at Danville attempted to locate the legal papers, but were unsuccessful. The missing legal papers consisted of about 1300 pages of common law records. The transcript from Claimant’s trial was 185 pages and. he had two depositions from a prior lawsuit. One of the depositions was a copy of the original. The evidence indicated the transcript of depositions would cost $300. The Claimant testified that to replace the lost documents would cost $50 and to replace his trial transcript would cost $626.

Claimant’s Exhibit 4 is the Department of Correetions Review Board decision. The decision indicates the legal papers were shipped on the transfer bus but were not received at Danville. The claim was denied because there was no way the prison board could determine what was actually shipped because their employee only wrote down “1” court transcript and “1 stack” legal papers. The form used by the State had room to expand upon the nature of the personal property inventoried but was not filled out in this case by the officer.

The Claimant testified that the State lost an affidavit from a witness which he planned to use in a petition for post-conviction relief. The affidavit was part of the stack of legal papers. The witness cannot presently be located. Additionally, Claimant spent $14 in mailing to the Court of Claims.

The State brought out at the hearing that the Claimant was convicted of murder in 1977 for the killing of Ernest Ellis Howard. The lost papers were mainly related to his conviction. Both his appeal and post-conviction petition of the 1977 conviction were unsuccessful. With the assistance of counsel, Claimant filed a Federal habeas corpus petition in 1980. The petition was denied. His attorney had copies of some of his legal papers and his deposition. The lawyer paid for the deposition and Claimant did not have to pay for his original trial transcript as he was a poor person. He also had never purchased a record in his habeas corpus proceedings. The Court of Claims granted $1,652.95 to Arthur E. Howard in Howard v. State, 32 Ill. Ct. Cl. 1020, for the funeral expenses of Ernest Ellis Howard as a crime victim’s award.

THE LAW

The State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual possession of such property, as during the course of the transfer of an inmate between penal institutions, or when the institution receipts for the property. Lewis v. State (1985), 38 Ill. Ct. Cl. 254; Doubling v. State (1976), 32 Ill. Ct. Cl. 1.

In the present case, the Claimant was transferred between penal institutions and received a receipt for his property. His trial transcript and legal papers were not returned. The loss of bailed property while in the possession of a bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. (Moore v. State (1980), 34 Ill. Ct. Cl. 114.) The State has not rebutted the presumptions of negligence and is liable for the loss of Claimant’s transcript and legal papers. There was no proof of due care.

The issue of value is more difficult. The Claimant has the burden of proving his damages or he cannot prevail. (Rivera v. State (1985), 38 Ill. Ct. Cl. 272.) Claimant testified that the cost to replace the depositions was $300, the cost to replace lost documents would be $50, and the cost to replace his trial transcript would be $626.

Claimant had been granted in forma pauperis status so it would be unlikely he would have paid for these legal papers in advance. He did provide a letter from a court reporter, Theresa M. Croteau, and a letter from the clerk of the United States District Court in support of his damage claims. The amount of the transcript of $626 is not so supported by that figure but appears reasonable for a transcript of a murder trial. (Stephenson v. State (1985), 37 Ill. Ct. Cl. 263.) The issue is whether the bills were reasonable, not whether they were paid or unpaid. Lawrence v. State (1982), 35 Ill. Ct. Cl. 709.

The State cites Tally v. State (1983), 35 Ill. Ct. Cl. 828, in support of their position that the Claimant has failed to show that his property was in the exclusive possession of the State. However, the findings in Claimant’s Exhibit 4, the administrative review board decisions, indicate Claimant’s bundle of legal material was shipped from Joliet but not received at Danville. The Claimant’s property was therefore in the exclusive possession of the State. Claimant was in the process of filing a second post-conviction petition and therefore the lost documents had value to Claimant. The reasonable value to replace these documents would be $976. The Court has justified such awards at the cost to replace the transcripts. Willis v. State (1980), 34 Ill. Ct. Cl. 242.

However, the State argues that any recovery by Claimant must be offset by the State’s prior payment to the crime victim’s father. (Ill. Rev. Stat. 1985, ch. 37, par. 439.24 — 6.) Where the evidence in the case indicates that the Claimant is indebted to the State, then a setoff must be made. Progos v. State (1960), 23 Ill. Ct. Cl. 207; Choiniere v. State (1974), 30 Ill. Ct. Cl. 174.

The Claimant is entitled to $976 for damages, but the State is entitled to a recoupment of the entire amount towards the crime victim’s payment of $1,652.95. The Crime Victims Compensation Act allows the State to be subrogated to the rights of the crime victim and to be paid back for the award. (Hamilton v. State (1985), 37 Ill. Ct. Cl. 452.) The Respondent properly raised this setoff in its affirmative defense and is entitled to the same. The State, in effect, has a lien for $1,652.95 and may reduce an award to recoup that amount. (Gettis v. State (1975), 30 Ill. Ct. Cl. 922.) Where the setoff exceeds the amount the Claimant could recover, it has been the court’s practice to dismiss the claim. Dawson v. State (1983), 35 Ill. Ct. Cl. 874.

Accordingly, the amount due the State by the Claimant exceeds the award for the loss of the legal documents and the Claimant is denied a recovery.

Therefore, this claim is dismissed.

ORDER

Montana, C.J.

Claimant has filed a motion for a new trial. The Court has carefully considered Claimant’s submission. We find that it does not set forth sufficient grounds for the Court to vacate the order filed February 22,1989.

Accordingly, Claimant’s motion is denied.


source: Caselaw Access Project

author: Raucci, J.

license: Public Domain

text:
    (No. 87-CC-3186
    Walter Montgomery, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 19, 1988.

    Walter Montgomery, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Kimberly L. Dahlen, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This is a prisoner personal property case combined with a claim for lost prisoner pay on two separate occasions when the Claimant was found to have been wrongfully removed from his job assignment.

First, with respect to Claimants claim for lost personal property, Claimant testified that on November 22, 1985, Claimant “was walked” from his job assignment on a disciplinary ticket. He was not allowed to stop at his cell to gather his personal property. On the next day, while Claimant was in segregation, it was discovered that a substantial amount of his property was missing. The institutional inquiry board ordered an investigation into Claimant’s loss of his personal property and the institutional investigation determined that Claimant’s property was lost due to staff negligence. Claimant claimed that the value of his lost personal property was $299.90.

The institutional administrative board determined that Claimant’s loss was $150.00. This amount was deposited to Claimant’s trust account. Claimant failed to make any proof of the value of his property other than what may have been set forth on Claimant’s bill of particulars.

With respect to Claimant’s claim pertaining to lost pay, Claimant was removed from his job assignment on disciplinary tickets on two separate occasions. First, on November 22,1985, Claimant was removed from his job assignment until February 20, 1986. The institutional administrative board later determined that this removal was wrongful. Again on May 17, 1986, Claimant was removed from his job assignment and this removal was also determined to have been wrongful and Claimant was reinstated.

During both occasions that Claimant was removed, he received a reduced rate of pay at $10.00 per month, instead of $26.00 per month (Respondent’s brief, page 1).

Respondent takes the position that Claimant failed to offer any proof of the value of his property and cites Hale v. State (1986), 39 Ill. Ct. Cl. 221.

With respect to Claimant’s claims pertaining to lost pay, Respondent has taken the position that prison employment is a privilege and not a right (citing administrative regulations). Institution regulations do not provide for payment of “back pay” when it is determined that an inmate is removed from his employment status wrongfully.

On the record in this case, it is impossible to determine that the amount paid to Claimant for his lost personal property was inadequate. It is the responsibility of Claimant to come forward with proof of value. Claimant failed to adduce any proof of value.

That portion of Claimant’s claim pertaining to lost income from wrongful removal from a job assignment invites the Court to adjudicate the fairness or propriety of the administrative regulations applicable to the Department of Corrections and the provisions pertaining to prisoner job assignments. During the entire time that Claimant’s disciplinary tickets were under consideration, Claimant received $10.00 per month for unassigned State pay (Respondent’s brief, page 3). This is the amount Claimant was entitled to since he was not assigned to a job at that time (Respondent’s brief, page 3). Perhaps most importantly, Claimant offered no evidence that the disciplinary tickets which gave rise to Claimant’s removal from his job assignment were negligently or wrongfully issued. Claimant asked this Court to rely upon the act of the administrative personnel in the prison, in restoring Claimant to his job assignment, upon which to predicate total liability in this Court. This Court has not previously acted as a court of review over the administration of prison regulations except in cases where proof of violations of existing regulations tends to establish liability of the Respondent under recognized principles of tort law.

It is therefore ordered, adjudged and decreed that the Claimant’s claim be denied.


author: Sommer, J.

text:
    (No. 87-CC-3910
    Keturah Halima, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 22, 1989.

    Goldman & Marcus (Arthur R. Ehrlich, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Erin M. O’Connell, Assistant Attorney General, of counsel), for Respondent.
   Sommer, J.

The Claimant, a former State employee, alleges that she was discharged from State employment on August 17, 1983, because she filed and pursued a workers’ compensation claim.

The Claimant brought the matter of her discharge before the Civil Service Commission. A full hearing was held, and a final decision was entered on or about March 10, 1984. The Claimant did not prevail, and did not appeal to the circuit court as per the Administrative Review Law. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101.) The Claimant filed in this Court on June 4,1987, seeking a full hearing.

This claim is similar to that of Rockford Memorial Hospital Association v. State (1968), 26 Ill. Ct. Cl. 215, 218. In that case, the Claimant did not appeal a ruling of the public aid commission to the circuit court as set out in the Administrative Review Law, but sought a new trial in this Court. The Court stated:

“There is no evidence that the remedies set out in the above statutory provisions were ever pursued. Not only has Claimant failed to exhaust its administrative remedies, but the Act specifically provides for final review by the Circuit Court. It has been an established rule of this Court that, where the Claimant has an adequate remedy in a court of general jurisdiction, the Court of Claims has no jurisdiction. (B & F Hi-Line Construction Corporation vs. State of Illinois, 21 C.C.R. 189; Denton vs. State of Illinois, 22 C.C.R. 83).”

After careful consideration, this Court concludes that Rockford Memorial Hospital Association, supra, correctly states the law governing the present claim.

To hold otherwise would allow Claimants who are unhappy with the results of trials before administrative agencies to have an immediate second trial in this Court as a matter of right. We do not believe that a Claimant’s right to two trials and having the State defend the same claim twice is the intent of the statutory scheme, nor the practice under it; rather the intent and practice is that trial is held before the administrative agency and review can be had in the circuit and appellate courts, and this Court, acting on behalf of the General Assembly, examines any awards made prior to their payment.

It is therefore ordered that the motion of the Respondent to dismiss is granted and this claim is dismissed.


text:
    (No. 87-CC-4173
    Carol Behrens and Diane Behrens, Claimants, v. The State of Illinois, Respondent.

      Order filed October 25, 1988.

    Fishman & Fishman, for Claimants.
    Neil F. Hartigan, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   Sommer, J.

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

The court finds that the instant claim is for personal injuries and was filed on June 18, 1987, seeking the maximum award of $100,000 apiece for both Claimants.

Section 8(d) of the Court of Claims Act (Ill. Rev. Stat. 1987, ch. 37, par. 439.8(d)) provides for a $100,000 limitation on any Court of Claims award of damages in claims arising in tort. Further, section 26 of the Act (Ill. Rev. Stat. 1987, ch. 37, par. 439.24 — 6) provides that there shall be but one satisfaction of any claim or cause of action in this Court, and any recovery awarded by us shall be subject to the right of setoff.

Claimant concurrently filed another cause in the circuit court of Cook County entitled Behrens v. Ranahan, No. 85-L-26255. This cause arose from the same occurrence that gave rise to the instant claim. The circuit court action was settled for $100,000 apiece for both Claimants herein.

The terms and conditions governing suits for damages against the State as the sovereign are granted by the General Assembly and do not arise as a matter of common law or organic law. The statutes granting the exceptions to sovereign immunity are strictly interpreted.

The precedents guiding the Court in the present claim are uniform, consistent, and numerous in their statement of the rule that recovery of the statutory limit of $100,000 from another party to an accident completely sets off any claim that may be had against the State. Kurowski v. State (1984), 37 Ill. Ct. Cl. 215; Petersen v. State (1984), 37 Ill. Ct. Cl. 104, 110.

It is therefore ordered that Respondent’s motion be, and the same is, hereby granted, and the instant cause is hereby dismissed.


author: Dillard, J.

text:
    (No. 88-CC-0708
    Linda Slepcevich, Claimant, v. The State of Illinois, Respondent.

      Order on motion to dismiss filed February 23, 1988.

      Order on motion to dismiss filed January 26, 1989.

    Brittain, Ketcham, Strass, Terlizzi, Flanagan, Weir & Johnson, for Claimant.
    Neil F. Hartigan, Attorney General (Jan Schaffrick, Assistant Attorney General, of counsel), for Respondent.
   ORDER ON MOTION TO DISMISS

Dillard, J.

This cause coming on to be heard on Respondent’s motion to dismiss, due and proper notice having been given and the Court being fully advised in the premises:

It is hereby ordered that:

The allegations of Claimant’s complaint referring to personal injuries are hereby dismissed, with prejudice, for failure to comply with the provisions of section 22— 1 of the Court of Claims Act. Ill. Rev. Stat. 1987, ch. 37, par. 439.22 — 1.

ORDER ON MOTION TO DISMISS

Dillard, J.

This cause coming on to be heard upon Respondent’s motion to dismiss, both parties having extensively responded in writing to the motion, the Court being fully advised in the premises, and due notice having been given:

The court finds that section 22 — 1 of the Court of Claims Act (Ill. Rev. Stat. 1987, ch. 37, par. 439.22 — 1) requires that Claimant’s notice must have been filed within one year from the date of injury with the Attorney General’s Office and with the Clerk of the Court of Claims. In the instant situation, the date of the alleged occurrence was January 24, 1986. The required statutory notice was not filed in either the office of the Attorney General until October 2,1987, or the Clerk of the Court of Claims until September 28, 1987, thereby exceeding the statutory one-year limitation period.

Additionally, the Court of Claims has required strict compliance with the notice requirements of section 22— 1 of its Act. (Munch v. State (1966), Ill. Ct. Cl. 313, 315.) For example, this Court has held that failure to file notice of intent as required by the Court of Claims Act is a strict bar to action and requires the claim to be dismissed with prejudice. Pratt v. State (1982), 35 Ill. Ct. Cl. 685, 686.

In Thomas v. State (1961), 24 Ill. Ct. Cl. 137, this Court refused to acknowledge a report of an accident filed with the Department of Conservation as sufficient notice to the Attorney General’s Office and the Clerk of the Court of Claims. The Court exclaimed, “* * * the State of Illinois operates through many departments and thousands of employees. It may well be that a report was filed with the Department of Conservation, but such report could not be regarded as a notice to the Attorney General and the Clerk of this Court.. The statute places the burden upon Claimant, her agent or attorney to give proper notice # * V’ Id. at 139. Therefore, by merely filing a claim with the Department of Transportation, Claimant failed to comply with the notice provisions of the Court of Claims Act.

Furthermore, Claimant contends that the tort immunity act does not apply to the instant action because her claim was investigated within one year by the Department of Transportation, and thereby the filing of said claim constituted actual and constructive notice upon the Respondent. However, the tort immunity act applies to local entities and not the State of Illinois and the legislature has created a specific statute applicable to the instant situation, section 22 — 1. Therefore, this Court must follow the notice requirements as provided by law and not a provision provided for, essentially, municipalities.

Therefore, Claimant’s claim for personal injuries must be dismissed for failure to properly file a notice of intent as required by section 22 — 1 of the Court of Claims Act.

It is hereby ordered that this cause is dismissed, with prejudice, for failure to comply with the provisions of section 22 — 1 of the Court of Claims Act.


author: Burke, J.

text:
    (No. 88-CC-3758
    Menard County Health Department, Claimant, v. The State of Illinois, Respondent.

      Order filed February 14, 1989.

    Menard County Health Department, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (James C. Majors, Assistant Attorney General, of counsel), for Respondent.
   Burke, J.

This cause comes on to be heard on the Respondent’s motion to withdraw its previously filed stipulation agreeing to the entry of an award and to substitute a motion to dismiss, it appearing that due notice has been given, no objection has been filed, and the Court being advised.

The Claimant, Menard County Health Department, filed this claim on April 18, 1988, seeking $1,439.24 for costs incurred in the administration of USD A Special Supplemental Food Program for Women, Infants and Children (WIC) as administered by the Illinois Department of Public Health. On July 19,1988, the Respondent filed a stipulation agreeing to our entering an award in the amount sought. On July 29, 1988, the Respondent filed a motion to withdraw its stipulation. In support of the motion to withdraw, Respondent stated that:

“1. Closer review of the file indicates that the departmental report was filed in error since it has no authority to pay from the General Revenue Fund and there are insufficient funds in the Department of Public Health lapsed appropriations budget.”

Respondent then asked the Court to enter a motion to dismiss on those grounds.

We have reviewed the departmental report which was compiled by the Department of Public Health, attached to the motion to dismiss, and offered as prima facie evidence of the facts contained therein pursuant to section 790.140 of the Rules of the Court of Claims (74 Ill. Adm. Code 790.140). The report indicates that no funds remained to pay the claim.

Based on the record we hereby grant the Respondent’s motion to withdraw its stipulation, grant the Respondent’s motion to substitute a motion to dismiss, and grant the motion to dismiss.


author: Montana, C.J.

text:
    (No. 88-CC-3888
    Mary B. Bojko, Claimant, v. The State of Illinois, Respondent.

      Order on motion for summary judgment filed December 28, 1988.

      Order on motion for reconsideration filed June 16, 1989.

    James J. Marszalek, for Claimant.
    Neil F. Hartigan, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   ORDER ON MOTION FOR SUMMARY JUDGMENT

Montana, C.J.

This cause coming on to be heard on the motion of Respondent for summary judgment, due notice having been given the parties hereto, and the Court being fully advised in the premises:

The court finds that this is a standard lapsed appropriation claim against the State of Illinois for travel expenses incurred by a court reporter who rendered services to the Illinois Industrial Commission. The departmental report of the Illinois Industrial Commission is attached hereto and, pursuant to section 790.140 of the Rules of the Court of Claims (74 Ill. Adm. Code 790.140) is prima facie evidence of the facts set forth therein.

As stated in the report, a total of $2,139.40 in claims was made against a lapsed balance of $195.58. As can be seen from the September 9, 1988, addendum to the departmental report, the two claims made against the lapsed balance were the instant claim, and Granlund v. State, 40 Ill. Ct. Cl. 320.

The Court of Claims has no authority to grant awards in cases where the balance of the appropriation remaining is insufficient to pay all the claims made against that appropriation, as section 30 of the State Finance Act (Ill. Rev. Stat. 1987, ch. 127, par. 166) prohibits obligating the State to any indebtedness in excess of the money appropriated for a department.

Where, as here, the total amount in claims exceeds the lapsed balance, the claims are paid in the order of their filing until the appropriation remaining is exhausted. In this instance, Granlund, which claimed $137.10, was filed before the case at bar and has already been paid. That leaves $58.48 remaining to apply to the instant claim.

It is therefore ordered that Respondent’s motion be, and the same is, hereby granted, and Claimant is hereby awarded the amount of $58.48.

ORDER ON MOTION FOR RECONSIDERATION

Montana, C.J.

This cause comes on to be heard on the Claimant’s motion for reconsideration or, in the alternative, motion for new trial, due notice having been given, and the Court being advised.

Claimant brought this action seeking $2,002.30 in reimbursement of travel expenses in connection with her performance of duties as a court reporter for the Illinois Industrial Commission. In her standard lapsed appropriation form complaint she alleged that she made demand for payment but her demand was refused on the grounds that the funds appropriated for the payment had lapsed.

The Respondent moved for summary judgment and an order was entered granting the motion on December 28,1988. In pertinent part that order stated as follows:

“The Court finds that this is a standard lapsed appropriation claim against the State of Illinois for travel expenses incurred by a court reporter who rendered services to the Illinois Industrial Commission. The departmental report of the Illinois Industrial Commission is attached hereto and, pursuant to section 790.140 of the Rules of the Court of Claims (74 Ill. Adm. Code 790.140) is prima facie evidence of the facts set forth therein.
As stated in the report, a total of $2,139.40 in claims was made against a lapsed balance of $195.58. As can be seen from the September 9, 1988, addendum to the departmental report, the two claims made against the lapsed balance were the instant claim, and Granlund v. State, No. 88-CC-1660.
The Court of Claims has no authority to grant awards in cases where the balance of the appropriation remaining is insufficient to pay all the claims made against that appropriation, as section 30 of the State Finance Act (Ill. Rev. Stat. 1987, ch. 127, par. 166) prohibits obligating the State to any indebtedness in excess of the money appropriated for a department.
Where, as here, the total amount in claims exceeds the lapsed balance, the claims are paid in the order of their filing until the appropriation remaining is exhausted. In this instance, Granlund which claimed $137.10, was filed before the case at bar and has already been paid. That leaves $58.48 remaining to apply to the instant claim.

The order concluded with the granting of the motion and awarding of the $58.48.

In her motion at bar, Claimant asserts that the Court did not address an issue raised in her objection to the motion for summary judgment. Essentially, Claimant sought to recharacterize her claim from a simple lapsed appropriation claim to one sounding in tort. A proposed amended complaint has a second count which alleges various acts or omissions by the Illinois Industrial Commission which are said to have resulted in her not being reimbursed the travel expenses. She seeks the opportunity to present such a claim.

The record in this case is already sufficient for us to understand what happened. The Industrial Commission incurred obligations in excess of the funds appropriated to pay for those obligations. The record does not explain how this occurred. It is not necessary for the purpose of this decision for the Court to know how it happened. Even if we assume the allegations of the amended complaint to be true, we cannot condone allowing this case to proceed as a tort claim. As a matter of policy, to do so would be tantamount to creating a mechanism by which nearly all spending limitations of the State’s appropriation process could be avoided. For the Court to pay an award in this case would be to in effect make a supplemental appropriation to the Illinois Industrial Commission. Appropriating State funds is the constitutional prerogative of the legislature.

However, for purposes of potential consideration of this matter by the legislature, we do find that the expenses as claimed were incurred, that the amount claimed is consistent with usual travel regulations, and that Claimant’s employer, the Industrial Commission, agreed that her claim is valid.

Accordingly, it is hereby ordered that the motions in the alternative at bar be and, hereby are, both denied.


text:
    (No. 89-CC-0723
    John J. McMahon, Claimant, v. The State of Illinois, Respondent.

      Order filed June 14, 1989.

    Parnell J. Donohue, for Claimant.
    Neil F. Hartigan, Attorney General (James C. Majors, Assistant Attorney General, of counsel), for Respondent.
   Sommer, J.

This cause coming to be heard on Respondent’s motion to dismiss, due notice having been given, and this Court being fully advised in the premises:

Finds that the Claimant has presented for payment bond coupons stating on their face that “On the First Day of Mar. 1934, the State of Illinois Promises to Pay to Bearer Forty Dollars.” These coupons came attached to bonds issued pursuant to a State highway bond issue of June 1, 1924. The coupons were for interest to be paid each year of the life of the bonds.

This Court finds that the coupons are not currency with an indefinite life, but rather are evidence of indebtedness payable on a stated date.

The Court of Claims Act provides:

“Sec. 22 (a). All claims arising out of a contract must be filed within 5 years after it first accrues ° ° (Ill. Rev. Stat. 1985, ch. 37, par. 439.22(a).)

The Code of Civil Procedure provides:

“Sec. 13 — 206. * ° ° actions on bonds * “ ° shall be commenced within 10 years next after the cause of action accrued * ° (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 206.)

Additionally, this Court finds that a cause of action for payment on the coupons arose in March 1934. Therefore, under either of the above acts, the claim was barred by the statute of limitations many years ago. This Court has no jurisdiction to hear this claim. Therefore it is ordered that this claim be dismissed with prejudice.


text:
    (No. 89-CC-0833
    Geupel DeMars, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed June 12, 1989.

    Fred R. Biesecker and George W. Woodcock, for Claimant.
    Neil F. Hartigan, Attorney General (Lance Jones, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This cause comes on to be heard on the stipulation of judgment and joint motion for entry of judgment filed by the Claimant, Geupel DeMars, Inc., and the Respondent, Illinois Capital Development Board (hereinafter referred to as the CDB), due notice having been given, and the Court being advised:

In pertinent part, said stipulation and motion states as follows:

“1. On October 3, 1988, Geupel DeMars commenced this action by filing its Complaint against the CDB. Said Complaint claimed damages in the principal amount of $395,485.87.
2. On February 17,1989, Geupel DeMars and the CDB entered into an agreement to settle the claims made in said Complaint, as well as other claims asserted by the CDB against Geupel DeMars for corrective work. A copy of the letter agreement containing the terms of the settlement between Geupel DeMars and the CDB is attached hereto and made a part hereof, marked as Exhibit A.
3. The CDB represents that the only remaining funds in its budget for the Vienna Medium Security Correctional Center is the unpaid balance of Geupel DeMars’ contract amount, which is $51,764.87.
4. As set forth in Exhibit A, the parties have agreed on the disposition of the $51,764.87 contract balance. Therefore, Geupel DeMars hereby ■withdraws, without prejudice, the claim made in paragraph 18 of its Complaint herein for the unpaid contract balance of $51,764.87.
5. Geupel DeMars and the CDB agree that the Court should enter judgment forthwith in favor of Geupel DeMars and against the CDB in the total amount of One Hundred Thirty-three Thousand Two Hundred Eighty-one Dollars ($133,281.00). This stipulated judgment amount is in full settlement of all claims made by Geupel DeMars in its Complaint herein, except the claim for the remaining contract balance of $51,764.87.”

This Court is not bound by such stipulations and motions and we cannot acquiesce in approving the motion and stipulation at bar. The reason we cannot do so is that, with the exception of the amount remaining due on the contract, no money remained in the CDB budget to cover the cost of the settlement. For that reason the claim must be denied.

However, for purposes of potential consideration of the legislature, the Court finds that the settlement agreement appears to have been reached through negotiations done in good faith between the parties.

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


text:
    (No. 89-CC-1769
    Jay Steinberg, Trustee of the Estate of Klingberg Schools, Claimant, v. The State of Illinois, Respondent.

      Order filed January 5, 1989.

    Torshen, Schoenfield & Spreyer, Ltd. (Mark Schoenfield, of counsel), for Claimant.
    Delihah Brummet, of the Department of Mental Health and Developmental Disabilities, for Respondent.
   Montana, C.J.

This claim is before the Court on the parties’ joint stipulation. The stipulation reads in relevant part as follows:

“1. On March 14,1986 the United States Bankruptcy Court for the Northern District of Illinois Eastern Division entered a judgment of $530,680.53 against Illinois Department of Mental Health and Development Disabilities, (hereafter DMH/DD) in favor of the Trustee. The Court found that DMH/ DD had violated sections of the Bankruptcy code in withholding contractual sums due and owing to the Klingberg Schools.
2. DMH/DD pursued an appeal to the United States District Court of Illinois. Judge Aspen of the District Court in an Order dated November 25, 1986 affirmed the ruling of the bankruptcy Court. (A copy of the Order was attached to the complaint.)
3. DMH/DD thereafter filed an appeal to the Seventh Circuit Court of Appeals. On January 13,1988 the Seventh Circuit affirmed the ruling of the District Court. (A copy of the Order was attached to the complaint.)
4. The time for any further appeals has expired.
5. All contractual funds in question predate the year 1981 and have long since lapsed.
6. The Trustee has agreed to pursue collection of his entered judgment via the Court of Claims for a period of time to and including June 30,1989. If the Court of Claims has not approved this stipulation and the legislature has not appropriated the funds by said date, the Trustee reserves the right to pursue other avenues of collection.
7. The Bankruptcy Court on September 16,1988 entered an order affirming that post-judgment interest would run on the judgment of $530,680.53 from the date of entry of the judgment March 14,1986 until payment.
8. The amount of post-judgment interest through December 31,1988 will be $111,837.55 and an additional $117.33 will accrue each day thereafter.
9. The parties enter this stipulation for the Court of Claims to approve the awarding of the principle [sic] judgment in the sum of $530,689.53 plus interest of $111,837.55 to the Trustee and seek such appropriation from the legislature. In the event that the above amount is not payed [sic] to the Trustee by December 31, 1988 an additional $117.33 per day should be added to the above stipulated interest amount.
10. The parties have agreed that this claim should be filed in the Court of Claims for the limited purpose of having the judgment and interest paid through inclusion of this obligation in an appropriation by the State of Illinois.
11. The parties further agree that the jurisdiction of the Court of Claims shall be limited to achieving payment of the judgment and interest and not the merits of the claim or any other issue, and that the Trustee shall have the right to withdraw this matter from the Court of Claims and pursue collection of the judgment and post-judgment interest by other means which the Trustee believes are available to the Estate after June 30,1989.”

We have reviewed the record. The joint stipulation is corroborated by the record. There is nothing more for us to consider. In claims such as the one at bar, the Court of Claims is but a vehicle for payment.

Accordingly, it is hereby ordered that the Claimant be, and hereby is, awarded the sum of $530,680.53 plus interest in the amount of $111,837.55 accruing through December 31, 1988, and interest in the amount of $117.33 each day thereafter until the Office of the Clerk of the Court of Claims vouchers payment of the award.


author: Poch, J. Dillard, J.

text:
    (No. 84-CV-0947

      In re Application of Eric L. Goff

      Order filed January 9, 1986.

      Opinion filed February 24, 1989.

    Michael B. McClellan, for Claimant.
    Neil F. Hartigan, Attorney General (Alison P. Breslauer and James A. Tyson, Jr., Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Poch, J.

This claim arises out of an incident that occurred on July 17, 1983. Eric L. Goff, Claimant, 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.).

This Court has carefully considered the application for benefits submitted on March 23, 1984, 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, Eric L. Goff, age 18, was a victim of a violent crime as defined in section 2(c) of the Act, to wit: aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4).

2. That on July 17, 1983, the Claimant was shot by an offender who was not known to him. The incident occurred on the street at 211 E. Bradley, Champaign, Illinois. Police investigation revealed that the attack was the result of a racially motivated dispute between the offender and a group of individuals. The Claimant was a bystander and apparently had no part in the dispute. The Claimant was taken to Burnham City Hospital for treatment of his injury. The offender was initially charged with attempted murder. He later pleaded guilty to reckless conduct and unlawful use of a weapon and was sentenced to 60 days in the Champaign County Correctional Center.

3. That the Claimant seeks compensation for medical and hospital expenses only.

4. 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 $750.00 per month, whichever is less.

5. That the Claimant was not employed for the six months immediately preceding the date of the incident out of which this claim arose and, therefore, suffered no loss of earnings compensable under the Act.

6. That the Claimant submitted medical and hospital bills in the amount of $4,419.14, none of which was paid by insurance, leaving a balance of $4,419.14.

7. That pursuant to section 10.1(e) of the Act, this Court must deduct $200 from all claims (except in the case of an applicant 65 years of age or older), and the amount of benefits, payments or awards payable under the Workers’ Compensation Act, Dramshop 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 of life insurance that would inure to the benefit of the applicant.

8. That section 10.1(g) of the Act states that compensation under this Act is a secondary source of compensation and the applicant must show that he has exhausted the benefits reasonably available under governmental or medical and health insurance programs, including, but not limited to Workers’ Compensation, the Federal Medicare program, the State public aid program, Social Security Administration burial benefits, Veterans Administration burial benefits and health insurance.

9. That on August 18, 1983, the Claimant was advised by the Christie Clinic to seek medical assistance through the Illinois Department of Public Aid. However, the Claimant did not follow through with this. Additionally, in the same month, Burnham City Hospital requested that the Claimant go into their office to complete a public aid application but the Claimant did not do so. Information obtained from the Illinois Department of Public Aid indicates that the Claimant was eligible for medical assistance through that agency at the time the incident occurred. Therefore, public aid would have assumed responsibility for the Claimant’s medical/hospital expenses had he made the providers of services aware of his eligibility.

10. That by reason of the Claimant’s failure to exhaust the remedies reasonably available to him through public aid, the Claimant has not met required conditions precedent for compensation under the Act.

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

OPINION

Dillard, J.

Claimant, Eric Goff, filed his application for compensation under the Crime Victims Compensation Act on March 23, 1984. His application sought medical and hospital expenses totaling $4,738.14. After an investigatory report was filed with the Illinois Court of Claims by the Attorney General on December 2, 1985, this Court entered an Order denying the application on January 9, 1986. The denial was based upon Claimant’s alleged failure to exhaust primary sources of compensation, specifically, public aid.

On February 10,1986, Claimant requested a hearing to contest the Court’s Order denying his application. Trial was held before Commissioner Robert Frederick on June 24, 1987. The evidence consists of the original investigatory report, departmental report pursuant to Ill. Adm. Code 790.140, filed September 22, 1986, the transcript of testimony, and Claimant’s Exhibits No. 1 and No. 2. Respondent’s Exhibit No. 1 was refused. Both parties filed a brief. The Claimant advised the Commissioner by letter that a reply brief would not be filed.

The Facts

On July 17, 1983, Claimant was shot by an offender who was not known to him at 211 East Bradley, Champaign, Illinois. Police investigation revealed that the attack was the result of a racially motivated dispute between the offender and a group of individuals. Claimant was a bystander and had no part in the dispute. He was taken to Burnham Hospital for treatment of his injury. The offender pleaded guilty to reckless conduct and unlawful use of weapons and was sentenced to 60 days in jail.

Claimant was under the guardianship of the State of Illinois from April 15, 1975, until March 4, 1984. From July 1,1983, until November 14,1983, he was a runaway and his whereabouts unknown to the Department of Children and Family Services. Claimant was born on September 15,1964, and was, therefore, 18 years of age at the time of the injury.

At the trial, Eric Goff testified that he had been shot by the offender. He cooperated with the prosecution of the offender and he gave copies of all his medical bills to the State’s Attorney. However, there was no order of restitution entered upon the conviction of the offender. Claimant filed suit against the offender but had been unable to serve a summons on the offender. Claimant incurred medical expenses of $74 to Prairie Professionals, $350 to Central Illinois Anesthesia Services, $3,134.14 to Burnham Hospital, and $1,180 to Christie Clinic.

While in the hospital, its personnel suggested Claimant apply for public aid benefits. He applied but was told it was “too late.” According to Claimant, a “lady” then sent him on a “wild goose chase.” He went to township aid and executed a release to them. The release to township aid was notarized February 14, 1984, and was Claimant’s Exhibit No. 1.

Claimant never received public aid or township aid. Claimant did not know the exact date he approached public aid for assistance but believed it was shortly after he had been released from the hospital. Additionally, he could not remember the name of the public aid caseworker.

On cross-examination, Claimant testified he was 18 on the date of the incident. Prior to the shooting he had no employment since he was in high school. It was almost a year later before Claimant became employed. At the time of the shooting, Claimant was in the hospital two days. Before discharge, he was asked how he was going to pay the bill. He told the hospital he did not know how he was going to pay the bill and he was referred to public aid. Within a few weeks of discharge, he started receiving bills for his treatment. He further admitted that he went to township aid on February 14, 1984, and to public aid just prior to that date. There is no question he waited more than six months to file a claim with public aid. Claimant did not remember if he received a written denial of his claim from public aid and Claimant presented no correspondence from public aid.

The Law

Pursuant to section 10.1(g) of the Act (Ill. Rev. Stat., ch. 70, par. 80.1(g)), crime victims compensation is a secondary source of compensation and the application must show exhaustion of benefits reasonably available under governmental, medical or health insurance programs, including, inter alia, workers’ compensation, the Federal Medicare program, the State public aid program (emphasis added), Social Security administration burial benefits, Veterans administration burial benefits, and health insurance. The evidence is clear that the Claimant was advised of the need to file a public aid claim even while he was in the hospital in mid-July 1983. He received medical and hospital bills shortly after leaving the hospital. He did not make his claim to State public aid until mid-February and was denied because of his late filing.

In Crime Victims Compensation Act cases, the Court of Claims has often denied applications where the Claimant failed to follow the rules applicable to such claims. The Court denied a claim where Claimant failed to timely file a notice of intent to file a claim. (In re Application of Hutcherson (1985), 37 Ill. Ct. Cl. 491.) The Court found ignorance of the rules to be no exception to the rules of the Crime Victims Compensation Act. The Court has denied claims where the applicant failed to cooperate with the police. (In re Application of Ford (1985), 37 Ill. Ct. Cl. 443.) The Court has denied claims where the pecuniary loss fails to exceed $200. In re Application of Becker (1984), 27 Ill. Ct. Cl. 457.

To prevail, Claimant must prove by a preponderance of evidence that he sustained a compensable loss under the rules of the Crime Victims Compensation Act. In re Application of Thanasouras (1984), 36 Ill. Ct. Cl. 456.

Claimant asks the Court to rely solely on his unsubstantiated testimony that he applied for State public aid when the Act is solely a secondary source of compensation. This Court has long required that all alternative remedies be exhausted in Crime Victims Compensation Act cases whether they be administrative or legal before seeking final determination of a claim in the Court of Claims. In re Application of Dickey (1981), 35 Ill. Ct. Cl. 514; In re Application of Hamilton (1983), 35 Ill. Ct. Cl. 1023.

Even if it is believed that Claimant made application to State public aid, he did not do so until more than six months had elapsed from his hospitalization. By his own testimony, he was rejected for his failure to timely file his public aid claim. By failure to exhaust other remedies and sources of recovery available to him, Claimant has not met a required condition precedent for compensation under the Act.

Based on Claimant’s failure to exhaust other remedies and sources of recovery available to him, it is hereby ordered that this application be, and hereby is, denied.


author: Poch, J.

text:
    (No. 85-CV-0139

      In re Application of David G. Merta

      Opinion filed January 14, 1985.

      Opinion filed October 28, 1987.

      Order filed August 25, 1988.

    David G. Merta, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Hans G. Fladung and Sallie A. Manley, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Poch, J.

This claim arises out of an incident that occurred on March 3, 1983. David G. Merta, Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act (Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.).

This Court has carefully considered the application for benefits submitted on August 6, 1984, 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, David G. Merta, age 26, was a victim of a violent crime as defined in section 2(c) of the Act, to wit: aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4).

2. That on March 3,1984, the Claimant was stabbed several times following an altercation with the offender. The incident occurred at 4810 South Pulaski, Chicago, Illinois. The Claimant was initially taken to Holy Cross Hospital for treatment of his injuries. The offender was apprehended and is presently being prosecuted for aggravated battery.

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

4. 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 $750 per month, whichever is less.

5. That the Claimant was not employed for the six months immediately preceding the date of the incident out of which this claim arose and therefore suffered no loss of earnings compensable under the Act.

6. That the Claimant incurred medical/hospital expenses in the amount of $7,846, none of which was paid by insurance, leaving a balance of $7,846.

7. That pursuant to section 10.1(e) of the Act, this Court must deduct $200 from all claims (except in the case of an applicant 65 years of age or older) and the amount of benefits, payments or awards payable under the Workers’ Compensation Act, Dramshop 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 of life insurance that would inure to the benefit of the applicant.

8. That pursuant to section 10.1(g) of the Act, compensation under this Act is a secondary source of compensation and the applicant must show that he has exhausted the benefits reasonably available under the Criminal Victims’ Escrow Account Act or any governmental or medical or health insurance programs, including but not limited to Workers’ Compensation, the Federal Medicare program, the State public aid program, Social Security Administration burial benefits, Veteran’s Administration burial benefits, and life, health, accident or liability insurance.

9. That the Claimant filed an application for medical assistance with the Illinois Department of Public Aid on March 14, 1984. This application was denied on April 9, 1984, due to the Claimant’s failure to comply with the Department of Public Aid’s policy regarding cooperation in asset verification. Therefore, his eligibility for assistance could not be determined and his application was denied.

10. That by reason of the Claimant’s failure to exhaust the remedies reasonably available to him through public aid, the Claimant has not met a required condition precedent for compensation under the Act.

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

OPINION

Poch, J.

This claim for compensation under the Crime Victims Compensation Act (Ill. Rev. Stat., ch. 70, par. 71 et seq.), hereinafter referred to as the Act, arises out of an incident which took place in Chicago, Illinois, on March 3, 1984. On that date Claimant was stabbed several times during an altercation at 4810 South Pulaski. The offender was apprehended and prosecuted for aggravated battery. Claimant was initially taken, to Holy Cross Hospital for treatment of his injuries and thereafter was transferred to Cook County Hospital.

On January 14, 1985, this Court entered an opinion which denied compensation due to Claimant’s failure to exhaust remedies reasonably available to him through the Illinois Department of Public Aid (IDPA). Claimant then petitioned the Court for a hearing pursuant to section 13.1(a)(3) of the Act. A hearing was held on May 13, 1986, and Commissioner J. Barry Fisher has duly filed his report.

In this claim the Court is concerned with whether Claimant has shown he exhausted the benefits reasonably available to him under the State’s public aid program.

Section 10.1(g) of the Act provides as follows:

“(g) compensation under this Act is a secondary source of compensation and the applicant must show that he has exhausted the benefits reasonably available under the Criminal Victims’ Escrow Account Act or any governmental or medical or health insurance programs, including, but not limited to Workers’ Compensation, the Federal Medicare program, the State Public Aid program, Social Security Administration burial benefits, Veterans Administration burial benefits, and life, health, accident or liability insurance.”

Claimant was unemployed at the time he was injured. While in the Cook County Hospital he was approached by a representative of IDPA who interviewed him concerning whether he wanted assistance in paying his hospital bills. Claimant indicated he wanted help and signed an IDPA application for medical assistance. However, it appears from the record that Claimant was not cooperative with IDPA when a subsequent interview was scheduled to discuss his assets and he was therefore denied medical assistance for failure to cooperate in asset verification as required by IDPA policy. The following dialogue took place at the hearing between the assistant Attorney General and Claimant:

“Ms. Manley: All right. When you received the letter from the Department of Public Assistance denying you assistance in paying your hospital bills, the reason given on that letter for the denial was that you had not cooperated in verifying your assets?
Mr. Merta: Right. I understand that.
Ms. Manley: And you understood that if in fact you were going to pursue the public assistance that might be available to you, you would have to cooperate in verifying assets. Isn’t that right?
Mr. Merta: Yes.
Ms. Manley: And you decided not to do that. Isn’t that correct?
Mr. Merta: She asked me if I had a bank account which is not right I don’t think.”

According to section 10.1(g) of the Act (quoted hereinabove), benefits under the Act are a secondary source of compensation. An applicant must show that he exhausted benefits reasonably available under programs such as those administered by IDPA. We do not think that in enacting that provision of the Act the legislature intended for every potential applicant for crime victims compensation to concurrently seek medical assistance from IDPA. Clearly some applicants would not be eligible for IDPA assistance in any event. However, we cannot ignore the plain language of the Act which places the burden on the applicant to show that he exhausted the reasonably available benefits.

The Office of the Attorney General is charged with the responsibility of investigating all claims made pursuant to the Act, reporting its findings to the Court, and representing the interests of the State of Illinois in hearings before the Court. The only time exhaustion of remedies becomes an issue in a crime victims compensation claim is when the Office of the Attorney General raises it. Our experience and research indicate that the Office has not been irresponsible in raising the issue. In each instance the issue has been raised, the record showed the applicant had another potentially available remedy but did not collect. Because of this and the plain language of the Act, under circumstances such as the case at bar, we hold that once the Office of the Attorney General raises the issue, the Claimant must show that he exhausted the suggested benefits or that the suggested benefits were not reasonably available to him. What is reasonably available necessarily must be judged on a case-by-case basis.

We have encountered the issue in several previously decided cases. In In re Application of Nagy (1975), 30 Ill. Ct. Cl. 888, the failure of a doctor to accept a public aid “green card” for follow-up care was an acceptable showing that such benefits were not reasonably available to the applicant. In In re Application of Dickey (1981), 35 Ill. Ct. Cl. 517, the applicant was eligible to have his medical bills paid by township assistance. Some were paid and some were not due to the applicant’s failure to submit the bills within the required time period. Those benefits were reasonably available and should have been exhausted. In In re Application of Hamilton (1983), 35 Ill. Ct. Cl. 1023, the applicant was entitled to IDPA medical assistance at the time of the crime. She neglected to inform her hospital of this fact and it subsequently applied to IDPA on her behalf. That applicant was denied due to her failure to keep an appointment which was necessary to a determination of eligibility. The record does not indicate why she failed to keep the appointment or otherwise indicate that she offered any evidence that IDPA medical assistance would not have been available. In In re Application of Wells (1984), No. 84-CV-0371, the applicant had applied for IDPA assistance but was denied on the grounds that he failed to cooperate with IDPA in the verification of his eligibility. He appealed IDPA’s decision alleging that he did not receive the correspondence relating to the request for the verification, but the denial was affirmed. The preponderance of the evidence in the record of his application for crime victims compensation was such that his actions in pursuing the IDPA benefits were not reasonably sufficient to meet the requirement of the Act. In In re Application of Gordon (1986), No. 85-CV-1131, the applicant was turned down due to his failure to comply with IDPA’s policy regarding cooperation in disclosure of income and assets. There, as in the case at bar, his eligibility for assistance could not be determined and his application was denied. His application for crime victims compensation was denied for failure to show he exhausted a reasonably available benefit. He did not request a hearing following the decision.

Recently, we were confronted with the issue in In re Application of Hickey (1987), No. 82-CV-0450. In Hickey the claimant was unemployed and without medical insurance at the time of the crime. Based on the investigatory report, his application for crime victims compensation was denied on the grounds that he failed to exhaust his remedy, which was IDPA medical assistance. He requested a hearing and a hearing was held. The evidence adduced at the hearing indicated that he was a victim of a crime so severe that he required reconstructive surgery as well as three weeks’ hospitalization. He made an appointment with IDPA within a few weeks after his release from the hospital. Still suffering ill effects from the crime, he telephoned to cancel the initial appointment. He stated that he asked if that would be all right and was told “there was no problem.” Two weeks later, he called again for an appointment and was told by a supervisor at IDPA that because he missed his original appointment he was denied assistance. The State contended that by cancelling his first appointment and/or by not appealing the denial decision, he did not exhaust his remedies within the meaning of the Act. We disagreed and granted the applicant an award.

In the case at bar, the issue was raised. The applicant had filed for IDPA benefits but was turned down for failure to comply with IDPA’s regulations regarding cooperation in disclosure of assets. At the hearing he offered nothing to show such assistance would not have been available to him through reasonable cooperation. However, having reviewed the transcript of the hearing we find that he was not provided adequate opportunity to do so and, in the interest of fairness, we remand the case to the Commissioner with instructions to hold another hearing to allow the applicant to present evidence on this issue.

ORDER

Poch, J.

This claim arises out of an incident that occurred on March 3, 1984. David G. Merta, Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act (Ill. Rev. Stat. 1985, ch. 70, par. 71 et seq.).

1. The Court on January 14, 1985, denied compensation due to Claimant’s failure to exhaust remedies reasonably available to him through the Illinois Department of Public Aid (IDPA). Claimant petitioned the Court for a hearing pursuant to section 13.1(a)(3) of the Act.

2. On January 7, 1988, a hearing was held before Commissioner J. Barry Fisher and he determined that the Claimant had assets in excess of the $400 maximum assets allowed for medical assistance from IDPA. Therefore, the Claimant would not have been eligible for public aid.

3. The Claimant complied with all pertinent provisions of the Crime Victims Compensation Act.

4. The Claimant sought compensation for medical/ hospital expenses only.

5. The Claimant was not employed for six months immediately preceding the date of the incident out of which this claim arose and therefore suffered no loss of earnings compensable under section 2(h) of the Act.

6. The Claimant incurred medical/hospital expenses in the amount of $7,846, none of which was paid by insurance, leaving a balance of $7,846. To date, the Claimant has paid nothing towards this balance.

7. That after applying the applicable deductions, the Claimant’s loss for which he seeks compensation is $7,646, based upon the following:

Compensable Amount Less Amount of Applicable Deduction Total

Cook County Hospital $7,020.00 $179.00 $6,841.00

Holy Cross Hospital 617.00 15.80 601.20

Ambulance Service Corp. 197.00 5.00 192.00

Southwest Radiological Association 12.00 .20 11.80

Totals $7,846.00 $200.00 $7,646.00

It is hereby ordered that the sum of $6,841 be and is hereby awarded to David Merta and Cook County Hospital.

It is further ordered that the sum of $601.20 be and is hereby awarded to David Merta and Holy Cross Hospital.

It is further ordered that the sum of $192 be and is hereby awarded to David G. Merta and Ambulance Service Corporation.

It is further ordered that the sum of $11.80 be and is hereby awarded to David G. Merta and Southwest Radiological Assoc., S.C.


author: Poch, J. Montana, C.J.

text:
    (No. 87-CV-0325

      In re Application of Marvin Wilcox

      Order filed December 1, 1986.

      Order on motion for reconsideration filed April 29, 1987.

      Order filed August 22, 1988.

    Marvin Wilcox, pro se, and Hay, Hart & Landau (Mary Aversano, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Sallie A. Manley, Jean Hillman, and James Tyson, Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Poch, J.

This claim arises out of an incident that occurred on February 8, 1986. Marvin Wilcox 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 September 19, 1986, 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 8,1986, the Claimant sustained leg and head injuries when he was struck by an automobile driven by an unknown offender. The incident occurred as the Claimant stepped into the street at 4333 North Western Avenue, Chicago, Illinois. The Claimant was taken to Ravenswood Hospital for treatment of his injuries. The offender 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 of one of the violent crimes specifically set forth under section 2(c) of the Act. Ill. Rev. Stat. 1985, ch. 70, par. 72(c).

3. That “crime 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 where a conviction for such offense has been entered.

4. That the issues presented to the Court are whether the Claimant’s injury that was caused by the offender’s operation of a motor vehicle is compensable under section 2(c) of the Act, and 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 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 Desir (1980), 34 Ill. Ct. Cl. 391; In re Stevens (1976), 31 Ill. Ct. Cl. 710.

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 Viscarrondo (1980), 34 Ill. Ct. Cl. 402.

7. That the Claimant has not met a required condition precedent for compensation under the Act.

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

ORDER ON MOTION FOR RECONSIDERATION

Poch, J.

This matter comes on before the Court on Claimant’s petition for reconsideration of the order of dismissal on December 1, 1986, and the Court being fully advised.

It is hereby ordered that the petition for reconsideration be and is hereby denied.

ORDER

Montana, C.J.

The applicant, Marvin Wilcox, brought this claim seeking compensation pursuant to the provisions of the Crime Victims Compensation Act (Ill. Rev. Stat., ch. 70, par. 71 et seq.). The claim arises out of an incident on February 8,1986, wherein the applicant was injured.

Based upon the investigatory report filed by the Office of the Attorney General, the Court found that the incident giving rise to the claim was not one of the crimes set forth under the Act for which compensation may be granted and the claim was denied. The applicant then requested a hearing. A hearing was held September 29, 1987.

The Claimant was not present but was represented by counsel. Counsel made a statement for the record that the Claimant had decided not to pursue the appeal of the denial of benefits and counsel conceded that pursuit of the appeal would be futile. Based on counsel’s statement which is contained in the transcript and need not be repeated here and based on additional evidence and argument offered by counsel for the Office of the Attorney General, it is hereby ordered that our decision of December 1, 1986, is hereby affirmed and this claim is denied.


text:
    (No. 77-CC-1593
    Frederick W. Walter, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 28, 1989.

    Saul R. Wexler, for Claimant.
    Neil F. Hartigan, Attorney General (Kevin Caplis, Special Assistant Attorney General, of counsel), for Respondent.
   Dillard, J.

This claim arises out of an accident which occurred on August 20, 1975. The Claimant, Frederick Walter, was riding his bicycle southbound along Gary Road in Wheaton, Milton Township, Illinois. It is uncontested that the portion of the road in question is owned and maintained by the State of Illinois.

On that morning in August 1975, the Claimant was riding with several other bicyclists. The Claimant was an experienced bicyclist and indeed had competed at the national level in street racing.

The Claimant belonged to a club containing many of the other individuals who testified in this matter. They rode on an almost-daily basis on a 20- to 25-mile circuit which included consistently that stretch of Gary Road in question. The witnesses all testified that the Gary Road stretch of the circuit was the worst part of the circuit.

The evidence was also uncontroverted that the Claimant frequently checked his bicycle, as well as the tires on the bicycle. The accident occurred as the Claimant was riding along Gary Road and experienced a blowout of his tire. The Claimant felt a jolt and heard a pop prior to being thrown from his bicycle. It is somewhat unclear from the testimony whether the pop or the jolting occurred first. What is clear is that the Claimant was thrown from the bicycle and became a quadriplegic.

The Claimant was riding in tandem in the second group of six riders. The riders would ride very close to each other and very close to the riders in front of them. While bicycling, the riders would not look at the road, but look at the bicyclists in front of them. The tire in question had been patched a short time before the accident by the Claimant. After the accident occurred, the Claimant filed a lawsuit against certain individuals regarding the tire in question. This claim in the circuit court of Cook County was later settled for approximately $45,000. During that lawsuit, it appears that the Claimant produced evidence which tended to prove that the tire was defective.

There was a conflict in testimony as to where the Claimant was found after the accident. At least one witness who lived in the neighborhood testified that he was found several feet from the site of the bump alleged to be the cause of this accident.

The bump in question at its highest point rises five to six inches from the rest of the pavement. It is one to two inches in height in other areas of the street. Crack lines bordering the bump vary in width from one inch to six inches and are approximately two inches deep.

The Claimant has alleged that the State of Illinois was negligent in failing to repair the split and buckled highway, failing to inspect Gary Avenue, negligently repairing the roadway, failing to post warnings of the hazardous condition of the roadway, and failing to properly maintain the roadway in a safe condition for motorists and bicyclists.

An independent testing laboratory produced by the Claimant in the circuit court lawsuit concluded that the type of tire the Claimant had was used by fewer than 1% of the bicyclists. It was a “sew-up” tire. The expert also testified that if the casing was bad, he would not recommend patching or riding on a sew-up tire. Clearly, the Claimant had patched this tire shortly before the accident. The independent testing laboratory expert also testified that the tire was defective.

While it is clearly established that there may be more than one proximate cause for a tort, it must still be proven that the alleged defect in the highway was a proximate cause of this accident. Clearly, the State did own and maintain the highway in question and had a duty to maintain it in a reasonably safe manner for motorists. That duty also applies to bicyclists and the riders of motorcycles. However, having examined the exhibits, which include pictures of the bump in question, and having examined the testimony of all witnesses who testified in this case, we believe that the highway in question was simply not defective or negligently maintained. It was a bump in an otherwise smooth stretch of highway. The State, as we have often held, is not an insurer of highways. (McAbee v. State, 24 Ill. Ct. Cl. 374.) The State’s duty to the public is to use reasonable, ordinary care to maintain its roads. Wilson v. State, 35 Ill. Ct. Cl. 10; Hollis v. State, 35 Ill. Ct. Cl. 86.

There is simply insufficient evidence that the bump in question was a cause of the accident. An award cannot be based on mere conjecture, but it must be proven more probably true than not true that the bump in question was in fact at least a probable cause of the accident. Transamerica Freight Lines, Inc. v. State, 18 Ill. Ct. Cl. 93; Weese v. State, 21 Ill. Ct. Cl. 210.

In addition, it is clear from the evidence at hand that the State did not have a duty to warn in this case. The State does have a duty to warn if a condition is so unreasonably dangerous that a duty to warn the public or prevent the public in some manner from using that part of the roadway is necessary. Here, it is quite clear that this situation did not exist. See Simpson v. State, 37 Ill. Ct. Cl. 76.

For the reasons previously stated, we hereby deny this claim.


text:
    (No. 78-CC-1392
    Barbara Smith, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 11, 1989.

    Gerald M. Hunter, for Claimant.
    Neil F. Hartigan, Attorney General (Al Ryan, Assistant Attorney General, of counsel), for Respondent.
   Burke, J.

This claim arises from an incident on September 13, 1976. On that date, the decedent, James Smith, visited his psychiatrist at the Sinisippi Medical Center and was then referred to the Singer Center. Decedent was driven by his brother-in-law to the Singer Center which is operated by the State of Illinois. Upon arrival at the facility, instead of going to the administration building to be admitted, he directed his brother-in-law to take him to a building where he had been housed in the adult mental health unit during a prior stay at Singer. However, since his discharge, that building was turned into an alcoholic treatment center.

Enroute to Singer decedent claimed he was Jesus Christ. At Singer, he saw a man with long hair and called him a “hippy” and asked another whether he was a “Mexican” or “Negro.” Upon entering the alcohol treatment center, he picked up a chair, tipped over a table where two men were playing checkers, knocked a radio from a patient’s hand, and knocked a carton of milk off a tray that was being carried by an old man. Two security guards responded to a call from a nurse in the center. Upon arriving on the scene they attempted to subdue the decedent. Decedent swiped at the badge of one of the security guards with sufficient force to remove it from the guard’s shirt. The security officers then requested the help of two employees who also joined in to assist in subduing decedent. Decedent weighed approximately 300 pounds and stood 6'3" tall. He was taken down to the floor and handcuffed and in the ensuing struggle, suffered a heart attack. When it was noted that he was no longer breathing, he was given CPR and oxygen, and taken by ambulance to Rockford Memorial Hospital where he was pronounced dead on arrival. The coroner’s report indicated that he died of cardiac arrhythmia due to coronary arterial sclerosis. His obesity and previous condition were additional causes.

The case proceeded to trial on April 2, 1985. Evidence consisted of stipulations by the parties, witness testimony, expert testimony and deposition transcripts. Claimant and Respondent each filed briefs in support of their respective positions and oral arguments were heard on July 18,1989.

At the time of the incident the decedent was not a patient of Singer Center. The nurses, security guards and other Singer facility employees owed a duty to the patients of the Singer facility, that is, to be secure in their life and person while confined under State authority. The actions of the security officers were reasonable and in line with the Department of Mental Health’s safety protection policy and procedure manual. The Department’s manual states that the responsibilities of its security officers, such as Sergeant McHugh and Ash-craft, include the safety and protection of patients and the quelling of disturbances (policy and procedure manual, section IV, page 5, paragraphs D.l, D.6), as well as the stopping of trespassers or undesirable visitors (manual, section III, page 2, paragraph A). The evidence in the instant case does not establish that the actions of the security officers were contrary to the standards and policy of the Department of Mental Health. Decedent’s size and controllability dictated that the measures taken by the security officers and other employees of the center were taken to subdue decedent in order to protect other employees and patients from physical harm.

While there is undeniable sympathy for the family of the decedent, the force used was not excessive in this case. Accordingly, the claim is denied.


author: Patchett, J. Patchett, J. Patchett, J.

text:
    (Nos. 78-CC-1457, 78-CC-1458 cons.
    James C. Siefert, Administrator of the Estate of Donna Jean Siefert, deceased, and Beverly Beavers, Claimants, v. The State of Illinois, Respondent.

      Opinion filed January 26, 1989.

      Orders on motions for attorney fees filed November 14, 1989.

    Zimmerly, Gadau, Selin & Otto, for Claimants.
    Neil F. Hartigan, Attorney General (Claire Gibson, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

These two cases are consolidated for purposes of this opinion. The claims arose out of an accident which occurred September 27,1976. As a result of the accident, which was a head-on collision between an automobile driven by Donna Jean Siefert and an automobile in which Beverly Beavers was a passenger, Donna Jean Siefert lost her life. Beverly Beavers was seriously injured in the accident.

There is not a great deal of dispute regarding the facts of this accident. The accident occurred on Lynch Road, a road maintained by the State of Illinois in Vermilion County, just outside of Danville, Illinois. Lynch Road is a north-south rural road adjacent to the Wyman-Gordon plant in Vermilion County. The road, at the site of the accident, ran in a north-south direction, is concrete, and approximately 12 feet wide for approximately 300 feet north of the entrance to the plant. At that point Lynch Road has a curve to the west, after which Lynch Road runs generally east and west.

The automobile driven by Mrs. Siefert was traveling in a northerly direction on Lynch Road at about 3:15 in the afternoon. Mrs. Siefert’s vehicle left the highway approximately 15 feet north of the entrance to the plant. At that point, the shoulder of the road on the east side of the road was extremely rough and contained many ruts and holes. After traveling approximately 220 feet, partially on the shoulder and partially on the highway, the car veered out of the ruts across the highway and struck another vehicle in which Mrs. Beavers was a passenger.

There was some dispute about the nature and extent of the ruts and holes on the shoulder; however, it was undisputed that the shoulder was in a general state of poor repair. Much of the testimony at the hearing held in this case before the Commissioner of this Court concerned the nature and extent of the deterioration of the shoulder of Lynch Road. We need not dwell on it more here except to state that it is a factual finding of this Court that the shoulder in question was unreasonably dangerous and not maintained in a reasonably safe manner. Even the Respondent’s witness, David Trow-bridge, who is a maintenance field technician for the State of Illinois, referred to the scene of the accident as a “real bad area.”

It also clearly appears that the State had notice that this defective shoulder existed. A Vermilion County deputy sheriff testified that he had received a letter from the Paris office of the Illinois Department of Transportation advising that if they found any further road conditions of that type, they should notify the Paris office. Although the Respondent objects that the letter was not produced at trial and it was probably hearsay evidence, no objection was made at the hearing as to its admission. In addition, the Court feels that the State had constructive notice of the defect because of the length of time it existed. This was established by uncontradicted evidence at the trial of this matter.

The first issue is, therefore, whether the State had a duty to maintain the shoulder in a reasonably safe manner. Assuming, as we have already found, that the State had notice of the defect, and that the shoulder was actually defective or not reasonably maintained, is the State liable as a matter of law?

Most of the cases involving highway shoulders which have been decided by this Court up until now have held for the Respondent. Only in the case of Welch v. State (1966), 25 Ill. Ct. Cl. 270, was there a finding for the Claimant. That case involved an extremely hazardous condition existing on the shoulder of the road. It also involved a truck which evidently was intentionally attempting to pull onto the shoulder of the road to avoid an accident. This is clearly the purpose for which shoulders are designed. That decision also used the definition of highway as found in the Illinois Highway Code (Ill. Rev. Stat., ch. 121, par. 2 — 202) and required the State to use “reasonable care” in maintaining the shoulder of the highway. Throughout the series of cases previously decided by the Court of Claims on this issue, the issue of contributory negligence was often a factor. Obviously, in this era of comparative fault, contributory negligence is no longer a complete bar to recovery. However, this Court must and will consider the comparative fault of the Claimants, if liability is found to exist. The Court may ignore some of the results of previous decisions which were decided on the ground of contributory negligence of the Claimant being a complete bar to recovery.

In a case decided just before the Welch opinion, Lee v. State (1964), 25 Ill. Ct. Cl. 29, the claim was denied. In that case, the alleged defect was minimal, consisting of a three- to four-inch difference in the level of the pavement and the level of the shoulder. In addition, the Court used the definition of highways found in Ill. Rev. Stat., ch. 95/2, par. 109. The Court cited the case of Somer v. State (1952), 21 Ill. Ct. Cl. 259, in which the Court held that the Respondent did not have a duty to maintain the shoulders of its highways in a manner that would insure the safety of vehicles turning off onto the shoulder, and then attempting to return to the roadway while traveling at the same speed. Furthermore, the Court found that the contributory negligence of Somer was a bar to recovery. The Court does not feel that the decision in Lee is inconsistent with either the decision in Welch, or the decision in this case. Here the uncontradieted evidence established that the shoulder of the highway was in extremely bad repair, and the alleged defect consisted of more than a difference in the level of the road and the shoulder. In addition, this Court does not feel that it is important which statutory definition of highway is used. It is clear that the Respondent is required to maintain the highway and the shoulder in a manner reasonably safe for its intended purposes. Obviously, the standard of care is higher for the highway than the shoulder, since the reasonably intended use of the highway requires a greater level of care than the shoulder.

In the case of Alsup v. State (1976), 31 Ill. Ct. Cl. 315, the claim was again denied. However, in that case there was an eyewitness who testified that the driver did not attempt to slow down after leaving the roadway, and that the defect complained of was a four- to six-inch drop off between the level of the highway and that of the asphalt shoulder. In addition, there was some factual dispute in that case as to the actual difference in the level of the highway and the shoulder. We feel that this case can be distinguished on the basis of eyewitness testimony which established that the Claimant in that case did not attempt to slow down prior to returning to the roadway. In addition, the defects alleged in Alsup were much more minimal than those in the case at hand.

In the case of Hill v. State (1978), 32 Ill. Ct. Cl. 482, the claim was denied because the Claimant became involved in the area between the paved shoulder and the unpaved shoulder, which included a six-inch drop off. Again, the simple difference in the levels of the roadway and the shoulder has not been held to be negligent maintenance by the State. Moreover, the Claimant in that case had come to a complete stop, and attempted several times to drive from the unpaved shoulder area back onto the highway. Considering the weather conditions at the time, which included heavy snow and ice, the Court felt that the Claimant was guilty of contributory negligence. At the time, that was a complete bar to recovery. In addition, it seems that the defect in the roadway complained of was simply minimal in nature.

In the case of Howard v. State (1979), 32 Ill. Ct. Cl. 435, Judge Holderman gave a rather complete history and analysis of claims involving alleged defective shoulders. The Court did an extensive analysis as to whether or not the injury involved in these cases was reasonably foreseeable. We hold that this type of accident, with resulting injuries, is reasonably foreseeable as a result of negligent maintenance of highway shoulders. We do not modify or overrule many previous decisions which hold that the State is not an insurer of each motorist’s safety on the highways. While the Howard case held that the other driver’s negligence was the sole proximate cause of the injuries in that case, it discussed whether the State’s maintenance had caused a dangerous condition. We hold that if the facts in a case show that the State has caused a dangerous condition by neglecting to maintain the shoulders of the highway, after having had actual or constructive notice of the defect requiring such maintenance, it is reasonably foreseeable that an injury may result therefrom. If that dangerous condition of the shoulder is a proximate cause of an injury, that is sufficient to establish liability. Damages would then of course be reduced by the Claimant’s contributory negligence or comparative fault.

In the case of Berry v. State (1968), 26 Ill. Ct. Cl. 377, the Court denied the claim because the Claimant was driving his tractor along the shoulder of the highway rather than on the highway itself. The case was clearly decided on the contributory negligence of the Claimant, which at that time was a complete bar to recovery. However, in denying the claim, the Court cited with approval the case of McNaughton v. State, 9 App. Div. 2d 990, 194 N.Y. State 2d 873, in which the New York Court held that the State was to maintain the shoulder of the road in a reasonably safe condition. The Court pointed out that the shoulder was not intended for travel or use when there is nothing to interfere with travel on the paved highway. There are no facts present here which suggest that Mrs. Siefert was deliberately driving on the shoulder. We hold that it is reasonable to assume that vehicles will leave the paved surface of the highway from time to time. The Respondent must maintain the shoulder of the road in a reasonably safe condition, so that the shoulder condition itself will not cause foreseeable injury to those automobiles or their passengers which leave the highway.

In the case at hand, the condition of the shoulder was significantly bad. It appears that the State had notice of the condition. Further, there was no evidence of excessive speed on the part of the Claimant, or any evidence to show that the Claimant was attempting to return to the highway just before the accident occurred. There was an expert witness who was entitled to express an opinion under the supreme court’s ruling in Wilson v. Clark (1981), 84 Ill.2d 186, 417 N.E.2d 1322, and who testified that the shoulder area did cause her to come back onto the highway.

For the foregoing reasons, we find that liability exists on the part of the Respondent, and the Claimants are entitled to recovery.

Not much evidence was presented at the oral argument as to damages. We will undertake the claim of Mrs. Siefert first. We believe that Mrs. Siefert, mother of two and employed at the time of her death, is entitled to a substantial amount of damages. However, we also believe that Mrs. Siefert, from the facts presented at the hearing on this case, was guilty of contributory negligence. In the case of Peterson v. State (1984), 37 Ill. Ct. Cl. 104, this Court considered the effect of comparative fault on an award in the Court of Claims. In that case, the total damages suffered by the Claimant were $500,000. The deceased was found to be 60% negligent, thereby establishing the damages at $200,000. That left him the right to a maximum award of $100,000.

In other words, the Court has decided that comparative negligence factors would be applied to the total amount of damages. After that figure has been established, the statutory maximum, if applicable, will apply. Of course, the other change in law since the time that the Peterson case was decided is that there now would be no recovery in the case where the Claimant was more than 50% negligent. However, we have established in the present case a comparative negligence figure of 50%.

There was some testimony in the present case of Donna Siefert’s life expectancy, her dependents, and her salary. There was no testimony from an economist to clearly establish the present cash value of decedent’s lost earnings. However, considering the factors that were present such as her age, health, habits of work and her dependents, we find the total damage in this case to be $400,000. Since we found her to be 50% negligent, we would reduce that award to $200,000. We must then apply the statutory maximum of $100,000. For the foregoing reasons, we award James Siefert, administrator of the estate of Donna Siefert, the sum of $100,000.

Mrs. Beavers was not guilty of any contributory negligence. However, the facts presented as to her damages indicate that her award should be substantially less than that of Mrs. Siefert. Considering her hospital bills, doctor bills, and the medical testimony of her physician, we feel that she should be awarded a total award of twenty five thousand dollars ($25,000.00). Since she received $12,500 under an earlier settlement with the insurance company of Mrs. Siefert, we will reduce our award by that figure and award her a net amount of twelve thousand five hundred dollars ($12,500.00).

We have consistently held, unlike the deduction of comparative fault, that any reduction to an award due to set-off or recovery from another source will be deducted from the statutory maximum award prior to making an award. That is the reason for the reduction in the total damages of Mrs. Beavers, which were $25,000, by the sum of $12,500. We therefore award Beverly Beavers the sum of $12,500.

ORDER ON MOTION FOR ATTORNEY FEES

Patchett, J.

Now on this 14 day of November 1989, the same being one of the regular judicial days of the Illinois Court of Claims, this cause coming on to be heard on the verified motion for attorney fees (in Siefert) of John Gadau, for this Court’s approval of a fee of 40%, said motion supported by affidavit in consent to attorney fees in addition to statutory amount by the Claimant, James C. Siefert, administrator of the estate of Donna Jean Siefert, deceased, and by Kendra Sue Siefert, having reached her majority, and waiver of notice of hearing of James C. Siefert and Kendra Sue Siefert, and the Court being advised in the premises.

It is therefore ordered that the motion for attorney fees (in Siefert) of John Gadau in the sum of 40% be and is hereby approved and that attorney fees are awarded in the sum of $40,000.00.

It is further ordered that John Gadau, or a law firm in which John Gadau was at the time of advancement a partner, be reimbursed for reasonable and necessary expenses to the prosecution of this cause against the State of Illinois in the sum of six hundred twenty nine dollars and thirty seven cents ($629.37).

ORDER ON MOTION FOR ATTORNEY FEES

Patchett, J.

Now on this 14 day of November 1989, the same being one of the regular judicial days of the Illinois Court of Claims, this cause coming on to be heard on the verified motion for attorney fees (in Beavers) of John Gadau, for this Court’s approval of a fee of 40%, said motion supported by affidavit in consent to attorney fees in addition to statutory amount by the Claimant, Beverly Beavers Hegg, and said Claimant’s waiver of notice on hearing, and the Court being advised in the premises.

It is therefore ordered that the motion for attorney fees (in Beavers) of John Gadau in the sum of 40% be and is hereby approved and that attorney fees are awarded in the sum of $5,000.00.