Deloney v. Board of Educ. of Thornton Tp.

• Decision Date: 31 May 1996
• Docket Number: No. 205,C,No. 1-94-4219,205,1-94-4219
• Citation: 666 N.E.2d 792,281 Ill.App.3d 775,217 Ill.Dec. 123
• Parties: , 217 Ill.Dec. 123, 111 Ed. Law Rep. 1297 William DELONEY, individually, and Kaplan & Begy, a partnership, individually and as equitable subrogee of William Deloney, Plaintiffs-Appellants, v. BOARD OF EDUCATION OF THORNTON TOWNSHIP, School Districtook County, Illinois, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 792

666 N.E.2d 792

281 Ill.App.3d 775, 217 Ill.Dec. 123,

111 Ed. Law Rep. 1297

William DELONEY, individually, and Kaplan & Begy, a partnership, individually and as equitable subrogee of William Deloney, Plaintiffs-Appellants, v. BOARD OF EDUCATION OF THORNTON TOWNSHIP, School District No 205, Cook County, Illinois, Defendants-Appellees.

No. 1-94-4219.

Appellate Court of Illinois First District, Fifth Division.

May 31, 1996.

Marsha A. Tolchin, Kaplan & Begy, Chicago, Il, for Appellants.

Raymond A. Hauser, Douglas D. Danielson, Scariano, Kula, Ellch and Himes, Chtd., Chicago, Il, for Appellees.

Justice GORDON delivered the opinion of the court:

Plaintiffs William Deloney and Kaplan & Begy, appointed counsel to Deloney, ¹ filed this action against defendant Board of Education of Thornton Township, School District No. 205 (the Board), seeking to recover attorneys fees and costs incurred by Kaplan & Begy in its successful representation of Deloney, a former employee of the defendant Board, in a civil rights action brought against Deloney by a student enrolled in School District No. 205. Upon both parties' motions for summary judgment, the trial court entered judgment denying plaintiffs' motion and granting defendant's cross-motion for summary judgment. The plaintiffs appeal.

The first issue presented on appeal is whether the allegations of the civil rights complaint filed against the school employee categorically control the school board's duty to indemnify the employee for defense costs. In the event that the complaint is so controlling, the second issue presented is whether the school board must indemnify its employee where the civil rights complaint alleged that the employee's misconduct occurred within the scope of his employment but characterized the wrongful conduct by the employee as being aggravated criminal sexual abuse.

The complaint seeking indemnification, filed on August 5, 1993, alleged that Deloney was employed as a truant officer by the Board from January 28, 1985 to March 28, 1989. The complaint further alleged that on August 8, 1991 a civil rights lawsuit was filed against Deloney based on conduct that was alleged to have occurred while he was employed by the Board and within the scope of that employment. A copy of the civil rights lawsuit was attached to the complaint. In the civil rights lawsuit the plaintiff therein (hereinafter referred to as the civil rights plaintiff) alleged that in 1987, she was 16 years old and sought to be enrolled in Thornton High School. She alleged that Deloney, as part of his duties for the Board, reviewed her enrollment application. Additional allegations in the civil rights lawsuit, relevant to the instant appeal, provided:

"6. In the course of reviewing plaintiff's enrollment request as part of his duties for School District Number 205, Deloney met with plaintiff and told her that he would not let her enroll unless she had sex with him.

7. Plaintiff gave into his demands * * *.

8. Plaintiff continued to give into Deloney's demands until July of 1988 * * *.

* * * * * *

10. In December of 1988, defendant Deloney was indicted for aggravated criminal sexual assault and official misconduct. In May of 1990, Deloney pleaded guilty to aggravated criminal sexual abuse."

The complaint in the case at bar alleged that the Board refused Kaplan and Begy's tendered defense of the civil rights lawsuit filed against Deloney and that Kaplan and Begy defended Deloney and obtained a jury verdict in Deloney's favor on September 30, 1992. That verdict was upheld on appeal.

The instant action for attorneys fees and costs is premised on the Board's statutory duty to defend and indemnify its employees for conduct occurring within the scope of employment. Those duties are set forth in section 10-20.20 of the Illinois School Code (Ill.Rev.Stat.1991, ch. 122, par. 10-20.20 now at 105 ILCS 5/10-20.20 (West 1994)) (the School Code). ² That section of the School Code provides that it is the duty of the school board to:

"indemnify * * * employees * * * against civil rights damage claims and suits, constitutional rights damage claims and suits * * * including defense thereof, when damages are sought for negligent or wrongful acts alleged to have been committed in the scope of employment or under the direction of the board." Ill.Rev.Stat.1991, ch. 122, par. 10-20.20 now at 105 ILCS 5/10-20.20 (West 1994).

In reliance on this provision, the plaintiffs filed their motion for summary judgment and argued that, as a matter of law, the Board had a statutory duty to defend Deloney in the civil rights action based on allegations therein that Deloney was acting under color of his authority as a truant officer and within the scope of his employment. In response to that motion and in support of its cross-motion for summary judgment, the Board argued that, as a matter of law, the plaintiffs' action was time barred and that the Board did not have a statutory duty to defend Deloney because the alleged conduct, Deloney's sexual relationship with the student, occurred outside the scope of employment and after Deloney had completed his truant officer duties. In support of its response and cross-motion, the Board attached the transcript of the civil rights trial and cited to Deloney's defense theory and his testimony that: (1) he verified the student's address listed on her application for admission during the first week of December, 1987; (2) the student called him and invited him to lunch at her house on December 18, 1987; (3) he did not go to the student's home on December 18, 1987 to pick up papers regarding school admissions; (4) the sexual relationship with the student was not based on his position of authority; (5) he and the student were "attracted to each other;" (6) at the time he and the student had a relationship, she was already enrolled in school. ³ In further support of its contention that Deloney's conduct was outside the scope of employment, the Board argued that Deloney's admission and guilty plea to aggravated criminal sexual abuse, a felony, could never be conduct occurring within the scope of Deloney's duties as a truant officer that would impose a duty upon the Board to defend and indemnify him.

In denying plaintiffs' motion for summary judgment and granting the Board's cross-motion for summary judgment, the trial court held that the Board did not owe a duty to indemnify and defend Deloney in the civil rights lawsuit based upon the mere allegation in the civil rights complaint that Deloney's conduct occurred within the scope of employment since Deloney admitted to the alleged conduct but argued that it occurred after his duties had concluded. The trial court also held that it would be against public policy and common sense to require the Board to defend Deloney for conduct that formed the basis of his guilty plea to a criminal act. ⁴

A motion for summary judgment may be granted when "the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005 (West 1992); Soderlund Brothers, Inc. v. Carrier Corp., 278 Ill.App.3d 606, 215 Ill.Dec. 251, 663 N.E.2d 1 (1995). The trial court must construe the pleadings, depositions and affidavits in the light most favorable to the nonmoving party. E.g., First State Insurance Co. v. Montgomery Ward & Co., 267 Ill.App.3d 851, 204 Ill.Dec. 814, 642 N.E.2d 715 (1994). Appellate review of an order granting summary judgment is de novo such that the appellate court must consider anew the facts and law related to the case and determine whether the trial court was correct. E.g., Hesselink v. R.L. Perlow Corp., 265 Ill.App.3d 473, 202 Ill.Dec. 36, 637 N.E.2d 575 (1994); Shull v. Harristown Township, 223 Ill.App.3d 819, 166 Ill.Dec. 142, 585 N.E.2d 1164 (1992).

On appeal, the plaintiffs argue that the grant of summary judgment to the defendant Board was erroneous and contrary to the express language of the statute which imposes a duty upon the Board to defend "when damages are sought for negligent or wrongful acts alleged to have been committed in the scope of employment or under the direction of the Board." Ill.Rev.Stat.1991, ch. 122, par. 10-20.20 now at 105 ILCS 5/10-20.20 (West 1994) (Emphasis plaintiffs.) Plaintiffs argue that the Board has a duty to defend whenever scope of employment allegations are made in the complaint and regardless of whether the evidence would show that the employee was acting outside the scope of his employment when the alleged conduct occurred.

The parties in the instant appeal agree that no Illinois case has addressed the issue here presented. As a result, they argue general principles of statutory construction. Those rules require that the court ascertain and give effect to the intent of the legislature (e.g., Bonaguro v. County Officers Electoral Board, 158 Ill.2d 391, 199 Ill.Dec. 659, 634 N.E.2d 712 (1994)) as evidenced by the plain and ordinary meaning of the statute's language (e.g., McIntosh v. A & M Insulation Co., 244 Ill.App.3d 247, 185 Ill.Dec. 69, 614 N.E.2d 203 (1993)). As stated in Buckellew v. Board of Education of Georgetown-Ridge Farm Community Unit School District No. 4, 215 Ill.App.3d 506, 511, 159 Ill.Dec. 58, 61, 575 N.E.2d 556, 559 (1991):

"the court must construe the statute as it is and may not, under the guise of construction, supply omissions, remedy defects, annex new provisions, substitute different provisions, add exceptions, limitations or conditions, or otherwise change the law so as to depart from the plain meaning of the language employed in the statute. [Citations.]"

As set forth above, section 10/20.20 of the School Code imposes a duty upon the Board to indemnify its employees against damage claims or suits, including the defense thereof, "when damages are sought for negligent or wrongful...