Elsbury v. Stann and Associates
| Decision Date | 15 December 2006 |
| Docket Number | No. 1-05-1620.,1-05-1620. |
| Citation | 861 N.E.2d 1031,308 Ill.Dec. 466 |
| Parties | Vicky ELSBURY, Mother and Next Friend of Jennifer Nicole and Kate Jaclyn, Minor Children of Roger O'Connor, Deceased; and James Dobry, Plaintiffs-Appellees, v. STANN AND ASSOCIATES, Illinois Earthcare Workers' Compensation Trust; Group Self Insurers' Insolvency Fund; The State Department of Insurance, Rate Adjustment Fund, Judith Baar Topinka, Treasurer, State of Illinois, as ex officio guardian of the Illinois Group Workers' Compensation Pool Insolvency Fund, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Wiedner & McAuliffe, Ltd., James W. Stevenson, Jr., Chicago, for Appellees.
Defendant, Judith Baar Topinka, the Treasurer of the State of Illinois (the Treasurer), appeals the judgment of the circuit court of Cook County granting plaintiffs' writ for mandamus.1 Plaintiff James Dobry brought this mandamus action against the Treasurer seeking to compel her to tender the principal of her general bond to the Group Workers' Compensation Pool Insolvency Fund (the Insolvency Fund) to ensure payment of his award entered by the Illinois Industrial Commission (Commission), now known as the Illinois Workers' Compensation Commission. See 820 ILCS 305/13 (West 2004). The circuit court granted plaintiff's writ of mandamus, holding that the Insolvency Fund was intended to compensate individuals such as plaintiff and the relevant statutes required the Treasurer to protect the Insolvency Fund. For the reasons that follow, we affirm the judgment of the circuit court.
On April 17, 1996, plaintiff was injured while performing his duties as a cement worker for his employer, Marko Construction Company (MCC), and was thereafter unable to return to his regular duties. MCC contributed to the Earth Care Workers' Compensation Trust (the Earth Trust) pursuant to section 4a of the Workers' Compensation Act (the Act). 820 ILCS 305/4a et seq. (West 1996). Section 4a of the Act authorized employers with similar risks to form workers' compensation insurance pools in order to pool risks and administer premiums and claims themselves. The Earth Trust was such a pool authorized by section 4a of the Act.
Following plaintiff's injury, the Earth Trust made payments to him on his workers' compensation claim. However, on October 26, 2000, plaintiff's payments from the Earth Trust ceased. Subsequently, an order of liquidation was entered against the Earth Trust. On December 18, 2000, plaintiff filed an amended application for adjustment of claim naming the Treasurer as a party respondent pursuant to section 4a(5) of the Act, which states in pertinent part:
"The State Treasurer is ex-officio custodian of the Group Self-Insurers' Insolvency Fund. Monies in the Fund shall be deposited the same as are State funds * * *. It shall be subject to audit the same as State funds and accounts and shall be protected by the general bond given by the State Treasurer. It is considered always appropriated for the purposes of compensating employees who are eligible to receive benefits from their employers pursuant to the provisions of the Workers' Compensation Act * * * when their employer is the member of a group self-insurer and the group self-insurer has been unable to pay compensation due to financial insolvency either prior to or following the date of the award. Monies in the Fund may be used to compensate any type of injury or occupational disease which is compensable under [the] Act.
The State Treasurer shall be joined with the group self-insurer as party respondent in any claim, or application for adjustment of claim filed against a group self-insurer whenever the compensation and medical services provided by this Act may be unpaid by reason of default of an insolvent group self-insurer.
Payment shall be made out of the Group Self-Insurers' Insolvency Fund only upon order of the Commission and only after the penal sum of the surety bond and/or securities and the assessment against the individual members of the group self-insurer in default have been exhausted." 820 ILCS 305/4a(5) (West 1996).
On January 1, 2001, the General Assembly repealed section 4a of the Act and, through Public Act 91-757, enacted the Workers' Compensation Pool Law (Pool Law) (215 ILCS 5/107a.01 et seq. (West 2002)). Pub. Act 91-757 § 10 (eff. January 11, 2001). The portions of section 107a.13 of the Pool Law that are relevant to the instant case are essentially identical to section 4a of the Act with the exception of the manner in which payment from the Group Workers' Compensation Pool Insolvency Fund (Insolvency Fund) is ordered. Section 107a.13(c) states that "[p]ayment shall be made out of the Group Workers' Compensation Pool Insolvency Fund only upon order of the Director [of Insurance]" (215 ILCS 5/107a.13(c) (West 2002)), as opposed to payment upon order from the Commission (820 ILCS 305/4a(5) (West 1996)). The Pool Law created the Insolvency Fund as the successor to the Group Self-Insurers' Insolvency Fund (Self-Insurers' Fund). Pursuant to the Pool Law, funds from the former would be transferred to the latter on the Pool Law's enactment date. 215 ILCS 5/107a.13(a) (West 2002).
On May 4, 2001, the Commission entered an order in favor of plaintiff awarding him temporary total disability benefits and medical expenses. The findings of the Commission and its order were uncontested. The liquidation proceedings against the Earth Trust were pending at the time of the Commission's order and MCC was insolvent and could not be found. On May 10, 2001, plaintiff received a letter from the Director of Insurance (the Director), which reads in relevant part:
On June 14, 2001, plaintiff began receiving payments from the Fund for all accrued monies and for medical and disability benefits. On October 26, 2001, the time for filing a proof of claim against the Earth Trust in its liquidation proceedings expired. Medical and disability payments continued from the Insolvency Fund until March 24, 2002, five months following the expiration of time to file a proof of claim against the Earth Trust, when payments to plaintiff ceased without notice. The record does not show that plaintiff was advised of the expiration date for filing a claim against the Earth Trust or instructed to file a claim against the Earth Trust in order to continue receiving benefits from the Insolvency Fund or Self-Insurers' Fund.
On May 9, 2002, the Industrial Commission's arbitrator ruled that plaintiff was permanently and totally disabled and that he was entitled to payments consistent with such a finding. The Commission further held that plaintiff's entitlement to the payments was clear and uncontested and that liability for payments rested upon the State under either section 4a of the Act or section 107a.13(b) of the Pool Law. The State did not appeal, seek clarification or modification of the ruling. The State, however, apparently made representations to the Commission that it could not pay the benefits to plaintiff because both the Self-Insurers' Fund and the Insolvency Fund were insolvent. The arbitrator, although acknowledging the State's representations, specifically stated that the State failed to produce any evidence or affidavits to support its claim.
On November 13, 2002, plaintiff filed a writ of mandamus against the Treasurer to compel her to fulfill her statutorily mandated duty to financially protect the Insolvency Fund by tendering to it her general bond. Plaintiff filed his second amended complaint on December 5, 2003, and a motion for summary judgment on December 1, 2004. The Treasurer argued, among other things, that plaintiff was not entitled to payment from the Insolvency Fund because he failed to timely file a claim against the Earth Trust during the liquidation proceedings. The Treasurer's arguments were based on an affidavit issued by the Chief Deputy Director of the Department of Insurance indicating that plaintiff was not entitled to any benefits because he failed to file a claim against the Earth Trust.
The circuit court granted plaintiff's motion for summary judgment following extensive briefing and oral arguments by the parties. The court found that plaintiff's request for mandamus was proper, plaintiff had a right to payment from the Self-Insurers' Fund or Insolvency Fund and the Treasurer failed to produce any evidence or legal authority to support her claim that plaintiff was required to file a timely claim against the Earth Trust during its liquidation period to preserve his right to payment from the Self-Insurers' Fund or Insolvency Fund.
The Treasurer filed her timely appeal from the circuit court's ruling and filed a motion in this court to stay the lower court's writ of mandamus, which this court granted.
The Treasurer contends that the circuit court misconstrued section 107a.13 of the Pool Law and erred by granting summary judgment to plaintiff because: (1) plaintiff is not entitled to payment from the Insolvency Fund because he failed to file a claim against the Earth Trust during its liquidation; and (2) section 107a.13 does not require the Treasurer to provide money for the fund but, rather, only mandates that the Treasurer protect the...
To continue reading
Request your trial
-
Hudson v. Ymca of Metropolitan Chicago LLC
...matters of summary judgment and statutory construction, both of which we review de novo. Elsbury v. Stann & Associates, 371 Ill.App.3d 181, 185, 308 Ill.Dec. 466, 861 N.E.2d 1031, 1035 (2006). Section 1(e) "Neither the State, any local government, probation department, public or community s......
-
Skirvin v. Treasurer State of Mo.
...fund and/or replenish within existing legal limits. 15. We are aware of the contrary decision reached in Elsbury v. Stann and Associates, 861 N.E.2d 1031 (Ill. App. 2006), where the Illinois Appellate Court, addressing a shortfall in a workers' compensation fund intended to compensate those......
-
Elsbury v. Stann & Associates
...Ill.2d 631 ELSBURY v. STANN & ASSOCIATES. No. 104388. Supreme Court of Illinois. SEPTEMBER TERM, 2007. Appeal from 371 Ill.App.3d 181, 308 Ill.Dec. 466, 861 N.E.2d 1031. Disposition of Petition for Leave to Appeal. ...
-
Elsbury v. Stann & Assoc.s
...authority, the Appellate Court, First District, is directed to vacate its judgment and opinion in Elsbury v. Stann & Associates, 371 Ill.App.3d 181, 308 Ill.Dec. 466, 861 N.E.2d 1031 (2007). Order entered by the ...