American Family Ins. Co. v. Seeber, 2-90-1004

• Decision Date: 25 June 1991
• Docket Number: No. 2-90-1004,2-90-1004
• Parties: , 158 Ill.Dec. 829 AMERICAN FAMILY INSURANCE COMPANY, as Subrogee of Ismael T. Elizondo, Plaintiff-Appellee, v. Robert E. SEEBER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1222

574 N.E.2d 1222

215 Ill.App.3d 314, 158 Ill.Dec. 829

AMERICAN FAMILY INSURANCE COMPANY, as Subrogee of Ismael T Elizondo, Plaintiff-Appellee, v. Robert E. SEEBER, Defendant-Appellant.

No. 2-90-1004.

Appellate Court of Illinois,

Second District.

June 25, 1991.

Roland W. Burris, Atty. Gen., Deborah L. Ahlstrand (argued), Asst. Atty. Gen., Robert Ruiz, Sol. Gen., Rosalyn B. Kaplan, Asst. Atty. Gen., Chicago, for Robert E. Seeber.

Ryan & Ryan, Ltd., Kathleen M. Ryan (argued), Waukegan, for American Family Ins. Co.

Justice NICKELS delivered the opinion of the court:

Defendant, Robert Seeber, appeals from a judgment entered in favor of plaintiff, American Family Insurance Company, as subrogee of Ismael Elizondo, in a negligence action. After a bench trial, defendant was found to be 55% at fault and liable for the damage to Elizondo's automobile as a result of the collision between that vehicle and the State's snowplow driven by defendant in the course of his employment as a roadway maintainer for the State. Defendant contends that: (1) the circuit court was without subject-matter jurisdiction to adjudicate plaintiff's claim because the State was the real party in interest, and, as such, plaintiff's claim could only be brought in the Court of Claims under the doctrine of sovereign immunity; and, alternately, (2) defendant was immune from suit individually under the doctrine of public official's immunity. We affirm.

Defendant testified that on the evening of December 28, 1987, he was traveling eastbound on Route 137 in Libertyville approaching the intersection of Butterfield Road, which was controlled by a traffic light. Both roads were two lanes in each direction, with westbound Route 137 having an additional westbound left-turn lane at the intersection. It had been and was snowing, and defendant was operating a six-wheel truck equipped with a snowplow in the course of his employment by the Illinois Department of Transportation. The snowplow was equipped with two yellow oscillating lights, two red flashing taillights, red marking lights on its side, and four headlights, all of which were in working order and functioning. As defendant approached the intersection, he noticed a disabled car resting against the traffic signal located on the median on the west side of the intersection and which was partially blocking the innermost westbound lane of Route 137. Defendant turned left through the intersection, to the east of the disabled car so that his vehicle was between the disabled car and approaching westbound traffic. He thereby also blocked the inner westbound lane to westbound traffic while providing a more visible barricade of that lane to approaching westbound traffic. He stopped the snowplow part way through the turn and reversed before coming to rest in this position. Defendant did not see Elizondo's vehicle until a split second before the collision.

Elizondo was traveling westbound on Route 137 in a pickup truck. He saw the snowplow begin to enter the intersection from approximately one-half mile away and slowed from 40 to 30 miles per hour before he reached the intersection. He was unable to avoid the snowplow as it continued its turn through the intersection because of the snow-covered road conditions. Elizondo's vehicle struck the blade of the snowplow as his vehicle entered the intersection.

Thus, testimony was conflicting as to whether defendant was still in the process of turning or whether he had stopped at the moment of impact. Testimony was equally conflicting as to the location of the snowplow in the innermost westbound lane, the location of Elizondo's vehicle in the outer westbound lane, and the weather conditions. However, the police report of the accident, to which the parties stipulated and which was entered into evidence, stated that defendant was turning at the time of the collision and that his attention as he turned had been on the disabled car. The diagram included as part of the police report indicated that defendant's vehicle had been partially blocking the outer westbound lane. The police report, however, belied Elizondo's assertion that the roads were clear and indicated that they were in fact snow and ice covered, and it was snowing at the time of the collision.

Plaintiff paid Elizondo $3,721 to repair damage to his vehicle and, as his subrogee, filed a complaint asserting both common-law negligence and statutory violations as the basis of recovery against defendant. Defendant answered the complaint and raised an affirmative defense of public official's immunity. The cause was set for mandatory arbitration, and, on the day the arbitration proceeding was scheduled to begin, defendant moved for judgment on the pleadings asserting that public official's immunity precluded a judgment of liability against him. Defendant also, for the first time, similarly asserted the defense of sovereign immunity.

The trial court denied defendant's motion, and, although barring defendant's defense of public official's immunity as to the common-law negligence claims of its complaint, the court ordered that defendant's defense of public official's immunity as to the statutory violations be presented at the arbitration proceeding. After entry of an award of damages by the arbitrators in favor of plaintiff, defendant rejected the award and proceeded to trial. It is the judgment of the court at that bench trial in favor of plaintiff that defendant now appeals, asserting that: (1) under the doctrine of sovereign immunity, the circuit court was without jurisdiction to hear plaintiff's claims because the defendant was merely a nominal party, and the State of Illinois was the party vitally interested in the outcome; and (2) if the doctrine of sovereign immunity is inapplicable, the doctrine of public official's immunity nevertheless applies to defendant's discretionary conduct in operating the snowplow, and, thus, defendant is immune from liability arising from such operation.

Sovereign immunity is a common-law doctrine based on the concept that the king could not be made subject to suit without his permission. (Oppe v. State of Missouri (1988), 171 Ill.App.3d 491, 495, 121 Ill.Dec. 882, 525 N.E.2d 1189.) The 1970 Illinois Constitution abolished common-law sovereign immunity but, however, delegated the power to recreate such immunity to the legislature. (Ill. Const.1970, art. XIII, § 4.) The legislature exercised this power (Ill.Rev.Stat.1987, ch. 127, par. 801) and provided that actions sounding in tort against the State must be brought in the Court of Claims. (Ill.Rev.Stat.1987, ch. 37, par. 439.8(d).) Therefore, determination of the proper jurisdiction focuses on whether the action is in fact one that subjects the State to liability or seeks to control the State (Kaiser v. Emrich (1980), 84 Ill.App.3d 775, 777, 40 Ill.Dec. 506, 406 N.E.2d 207), as opposed to one that merely subjects a State employee to liability for his own acts of negligence while acting within the scope of his State employment. Bartholomew v. Crockett (1985), 131 Ill.App.3d 456, 463, 86 Ill.Dec. 656, 475 N.E.2d 1035.

Claims based on the negligent operation of an automobile are outside the doctrine of sovereign immunity. (Bartholomew, 131 Ill.App.3d at 462, 86 Ill.Dec. 656, 475 N.E.2d 1035, citing Hering v. Hilton (1958), 12 Ill.2d 559, 147 N.E.2d 311; Gocheff v. State Community College (1979), 69 Ill.App.3d 178, 25 Ill.Dec. 477, 386 N.E.2d 1141; Pree v. Hymbaugh (1959), 23 Ill.App.2d 211, 162 N.E.2d 297.) Sovereign immunity provides protection from suit to a governmental employee only when the alleged acts of negligence relate to an obligation incurred solely by virtue of employment by the State. (Bartholomew, 131 Ill.App.3d at 463, 86 Ill.Dec. 656, 475 N.E.2d 1035, citing Gocheff, 69 Ill.App.3d at 184, 25 Ill.Dec. 477, 386 N.E.2d 1141.) In contrast, negligence that may arise from the operation of an automobile is based on the duties owed by each driver, regardless of employment, to other drivers. (Bartholomew, 131 Ill.App.3d at 463, 86 Ill.Dec. 656, 475 N.E.2d 1035, citing Gocheff, 69 Ill.App.3d at 184, 25 Ill.Dec. 477, 386 N.E.2d 1141.) Defendant asserts, however, that operation of a vehicle that is essential to performance of a governmental employee's obligations of employment is distinct from the operation of an automobile that is merely incidental to such employment. Defendant, thus, urges that the general rule that governmental employees are subject to individual suit for negligent operation of their vehicles is inapplicable.

Central to the arguments of both parties are our decisions in Madden v. Kuehn (1978), 56 Ill.App.3d 997, 14 Ill.Dec. 852, 372 N.E.2d 1131, and Kaiser v. Emrich (1980), 84 Ill.App.3d 775, 40 Ill.Dec. 506, 406 N.E.2d 207. In Madden, we held that a duty that arises independent of any obligation imposed by public office is not subject to sovereign immunity. (Madden, 56 Ill.App.3d at 1001, 14 Ill.Dec. 852, 372 N.E.2d 1131.) Thus, under Madden, defendant was not immune to suit in the circuit court for negligence that arose independent of his obligations as a State maintenance worker (see Madden, 56 Ill.App.3d at 1001, 14 Ill.Dec. 852, 372 N.E.2d 1131), and the duty to operate his vehicle in a safe manner was such an independent duty. Bartholomew, 131 Ill.App.3d at 463, 86 Ill.Dec. 656, 475 N.E.2d 1035; Gocheff, 69 Ill.App.3d at 184, 25 Ill.Dec. 477, 386 N.E.2d 1141; see also, e.g., Hering, 12 Ill.2d 559, 147 N.E.2d 311; Currie v. Lao (1990), 198 Ill.App.3d 625, 144 Ill.Dec. 851, 556 N.E.2d 318; Pree v. Hymbaugh (1959), 23 Ill.App.2d 211, 162 N.E.2d 297.

However, Madden noted the existence of the defendant's liability insurance in finding that the State was not the "real party in interest." (Madden, 56 Ill.App.3d at 1001, 14 Ill.Dec. 852, 372 N.E.2d 1131.) Kaiser, which defendant urges us to overrule here, resolved any question left undecided by Madden's reference to insurance as a...