Fanio v. John W. Breslin Co.

• Citation: 282 N.E.2d 443,51 Ill.2d 366
• Decision Date: 30 March 1972
• Docket Number: No. 43956,43956
• Parties: Doris FANIO, Appellant, v. JOHN W. BRESLIN COMPANY et al., Appellees.
• Court: Supreme Court of Illinois

Page 443

282 N.E.2d 443

51 Ill.2d 366

Doris FANIO, Appellant, v. JOHN W. BRESLIN COMPANY et al., Appellees.

No. 43956.

Supreme Court of Illinois.

March 30, 1972.

Caliendo, Engelstein & Abrams, Chicago, for appellant.

Hackbert, Rooks, Pitts, Fullagar & Poust, Chicago (John G. Poust and Dwight C. Adams, Chicago, of counsel), for appellees.

DAVIS, Justice.

The plaintiff brought this suit in the circuit court of Cook County, as administrator of her husband's estate, seeking damages for his wrongful death, and as an individual, asking damages for her obligations incurred under the family expense statute (Ill.Rev.Stat.1969, ch. 68, par. 15) by reason of the injuries to, and death of, her husband. Two of the counts--those against the defendant, Metropolitan Sanitary District of Greater Chicago--were dismissed by reason of the plaintiff's failure to give the required six-months notice and to file the suit within one year from the date the cause of action accrued, as required under the provisions of the Local Governmental and Governmental Employees Tort Immunity Act. Ill.Rev.Stat.1969, ch. 85, pars. 8--101, 8--102.

The plaintiff contends that the six-month notice and one-year limitation provisions constitute special legislation and create arbitrary and unreasonable classifications as to claims of minors and, hence, are unconstitutional; and that since section 9--103 of the Tort Immunity Act provides for permissible insurance coverage to protect a local public entity against liability, that in the event the public entity does in fact obtain insurance, then the defenses of the one-year limitation and the six-month notice under sections 8--101 and 8--102 of the Act are waived.

As to the plaintiff's first contention, we recently held in King v. Johnson (1970), 47 Ill.2d 247, 265 N.E.2d 874, that the six-month notice requirement of the statute was constitutional in that it did not constitute a special privilege, nor an arbitrary and unreasonable classification. In King we acknowledged that the legislature is primarily responsible for determining classifications, and that we will not interfere with the legislative judgment unless it is without rational basis. (47 Ill.2d at 250, 265 N.E.2d 874.) The rationale of King is equally applicable to section 8--101, barring a suit if not commenced within one year. The separate classification of public entitles for this purpose is proper. Also see: Erford v. City of Peoria (1907), 229 Ill. 546, 553, 82 N.E. 374.

The fact that the limitations of sections 8--101 and 8--102 are not applicable to minors (see: Haymes v. Catholic Bishop of Chicago (1965), 33 Ill.2d 425, 427--428, 211 N.E.2d 690; Wills v. Metz (1967), 89 Ill.App.2d 334, 336, 231 N.E.2d 628) does not mean that these sections created arbitrary classifications. It is true that under the wrongful death action, any damages obtained by the administrator are for the benefit of the widow and next of kin, the latter being minors in this case. However, the plaintiff administrator, the party imposed with the burden of bringing the action, is not a minor; and the reasons inherent in removing minors from the scope of the notice and limitation requirements are totally lacking in the wrongful death action. (McDonald v. City of Spring Valley (1918), 285 Ill. 52, 55--56, 120 N.E. 476.) We find no basis to hold sections 8--101 and 8--102 of the Tort Immunity Act unconstitutional.

The plaintiff next contends that under section 9--103 of the Tort Immunity Act (Ill.Rev.Stat.1969, ch. 85, par. 9--103) the 'defenses' of the notice requirement and one-year limitation period are waived. Section 9--103 provides: '(a) A local public entity may contract for insurance against any loss or liability which may be imposed upon it under this Act. Such insurance shall be carried with a company authorized by the Department of Insurance to write such coverage in Illinois. The expenditure of funds of the local public entity to purchase such insurance is proper for any local public entity. ...