Halleck v. County of Cook

• Decision Date: 29 June 1994
• Docket Number: No. 1-93-0057,1-93-0057
• Citation: 264 Ill.App.3d 887,202 Ill.Dec. 374,637 N.E.2d 1110
• Parties: , 202 Ill.Dec. 374 Bruno HALLECK, Plaintiff-Appellant, v. COUNTY OF COOK, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1110

637 N.E.2d 1110

264 Ill.App.3d 887, 202 Ill.Dec. 374

Bruno HALLECK, Plaintiff-Appellant, v. COUNTY OF COOK, Defendant-Appellee.

No. 1-93-0057.

Appellate Court of Illinois First District, Third Division.

June 29, 1994.

Patrick B. Nicholson, Cullen, Haskins, Nicholson & Menchetti, P.C., Chicago, for appellant.

John O'Malley, State's Attorney of Cook County, Chicago (Karen Covey, John J. Murphy, of counsel), for appellee.

Justice GREIMAN delivered the opinion of the court:

In this action alleging retaliatory discharge by defendant County of Cook, plaintiff Bruno Halleck appeals orders of the trial court which found that the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/1-101 et seq. (West 1992)) applies to such causes of action; the Act's one-year statute of limitation (745 ILCS 10/8-101 (West 1992)) bars his complaint; and the doctrine of equitable estoppel, as a matter of law, does not apply.

The two issues raised on appeal are (1) whether a retaliatory discharge claim against a governmental entity is subject to the one- year limitation period provided in the Act or the five-year statute of limitations provided in the Code of Civil Procedure (735 ILCS 5/13-205 (West 1992)) and (2) whether the doctrine of equitable estoppel precludes the defense of the statute of limitations.

We affirm.

On July 8, 1989, plaintiff sustained injuries in an accident related to his employment as a truck driver for the Department of Highways. Plaintiff had worked in such capacity for approximately nine years. As a result of these injuries, plaintiff received some benefits under the Workers' Compensation Act (820 ILCS 305/8(a) (West 1992)). However, plaintiff remained temporarily totally incapacitated for work from July 8, 1989, through June 1, 1990, and sought weekly payments in accordance with the Workers' Compensation Act.

Effective April 22, 1990, plaintiff was "separated from the payroll of the Cook County Highway Department" according to written notice provided to plaintiff by defendant on April 15, 1990. Defendant offered no reason for this action. At the time of separation plaintiff was receiving medical care for his injuries and asserting his right to receive weekly compensation for his temporary total incapacity.

On June 1, 1990, plaintiff was released by his treating physician to return to work. Defendant, however, refused and has continued to refuse to reinstate plaintiff to employment.

On June 13, 1990, an application for adjustment of claim was filed on behalf of plaintiff at the Illinois Industrial Commission. On July 19, 1990, a petition for immediate hearing was filed on behalf of plaintiff. On August 2, 1990, defendant filed a response which declared that temporary total disability benefits had been paid from July 6, 1989, to April 6, 1990, but that such benefits had been terminated because plaintiff "was observed engaging in manual labor while allegedly temporarily disabled and receiving Workers' Compensation payments from the County." In addition, defendant stated that plaintiff was no longer its employee. Trial was scheduled for September 19, 1990.

At the September 19, 1990, proceedings before the Industrial Commission, the assistant State's Attorney (Jean Marie Calcagno) represented defendant, reported that plaintiff was under criminal investigation for allegedly working while receiving temporary benefits and requested that the case be continued so that she could determine the nature of the investigation and evaluate possible settlement of plaintiff's claim. The trial was continued and plaintiff's workers' compensation claim was set for hearing on December 13, 1990.

On December 13, 1990, Assistant State's Attorney Calcagno requested that plaintiff "hold off any action" so that she could attempt to settle plaintiff's claim including resolution of the question of plaintiff's return to work with defendant. The trial was again continued and no action was taken regarding plaintiff's return to work.

On March 20, 1991, plaintiff's workers' compensation claim was again set for hearing. At this time Assistant State's Attorney Robert Scott appeared on behalf of defendant, requested that plaintiff's case be continued again and reported that at the next Cook County Board meeting scheduled for April 5, 1991, he would recommend the settlement of plaintiff's claim, including reinstatement as an employee with defendant, and that it would be approved.

On April 15, 1991, Assistant State's Attorney Scott advised plaintiff that the Cook County Board would not approve a settlement and referred to a video tape which purported to show plaintiff working.

On May 15 and May 24, 1991, plaintiff's workers' compensation claim proceeded to hearing.

On July 1, 1991, the arbitrator filed a decision with the Industrial Commission finding that defendant terminated plaintiff's employment without any explanation and refused, without good and just cause, the payment of weekly compensation benefits from the period April 6, 1990, through June 1, 1990. The arbitrator also assessed penalties against defendant as authorized by the Worker's Compensation Act. 820 ILCS 305/19(k), (l) (West 1992).

Subsequently plaintiff attempted to resolve the matter of his reinstatement. On August 28, 1991, plaintiff, by letter, advised Assistant State's Attorney Scott that plaintiff was going to seek reinstatement and suggested that a meeting be held to resolve this matter prior to the filing of a civil suit. In his complaint, plaintiff alleged that Scott had always led him to believe that he would be reinstated even after the trial of the workers' compensation claim.

On September 12, 1991, plaintiff, by letter, presented Assistant State's Attorney John Carreon with a copy of a draft complaint and again requested a meeting to resolve the matter of reinstatement. On October 1, 1991, Carreon telephoned plaintiff and requested information regarding plaintiff's medical release to return to work. On October 3, 1991, plaintiff forwarded the requested material to defendant. On February 12, 1992, plaintiff sent a letter to the administrative assistant of the Cook County Board President and asked for his intercession in resolving the matter of plaintiff's reinstatement. No reply was ever received.

On April 6, 1992, plaintiff filed a complaint in equity alleging retaliatory discharge. In response, defendant filed a section 2-619(5) motion to dismiss which provides for the involuntary dismissal of an action "not commenced within the time limited by law." (735 ILCS 5/2-619(5) (West 1992).) In its motion to dismiss, defendant asserted that plaintiff's cause of action accrued in April 1990 when he was terminated from his employment, that the one-year limitation period stated in the Act applies to plaintiff's action and that plaintiff's complaint was filed two years (April 1992) after the cause of action accrued (April 1990).

On July 28, 1992, following a hearing, the trial court found that plaintiff's action sounded in tort, was governed by the Act and would be time barred except for a question of fact as to equitable estoppel. The trial court denied defendant's motion to dismiss and granted plaintiff leave to amend his complaint to allege the affirmative allegation of estoppel.

Plaintiff subsequently filed a first amended complaint and based his estoppel argument upon the representations of defendant's agents and attorneys that he would be reinstated. Defendant responded with a section 2-619(5) motion to dismiss plaintiff's first amended complaint.

On December 7, 1992, following a hearing regarding plaintiff's first amended complaint, the trial court granted defendant's motion to dismiss, found that plaintiff's action was time barred on April 22, 1991, and rejected plaintiff's estoppel arguments reasoning that there could not be reasonable reliance on the part of plaintiff because the law does not charge the State's Attorney with the authority to approve a settlement of the worker's compensation claim and the matters pendant to it. The trial court further found that even if the reliance was reasonable, there was a reasonable period of time, seven days, after plaintiff knew that the Cook County Board would not approve a settlement (April 15, 1991) to file his action within the one-year period (April 22, 1991).

Plaintiff now appeals the orders entered on July 28, 1992, and December 7, 1992.

Plaintiff first asserts that the trial court incorrectly applied the one-year statute of limitation in the Act to his retaliatory discharge claim. Plaintiff argues that his retaliatory discharge claim arises out of a contractual relationship and thus his cause of action is not an injury within the definition of injury in the Act. Plaintiff submits that he has sought damages which are contractual in nature, i.e., reinstatement and monetary damages for lost wages and fringe benefits, and that where a claim and the elements of damages sound in contract, the five-year statute of limitations for contract actions applies.

Defendant contends that the Illinois Supreme Court has already held that a claim of retaliatory discharge is a tort and the Act applies. Boyles v. Greater Peoria Mass Transit District (1986), 113 Ill.2d 545, 101 Ill.Dec. 847, 499 N.E.2d 435.

Under the Illinois Code of Civil Procedure, "all civil actions not otherwise provided for" are subject to a five-year statute of limitations. 735 ILCS 5/13-205 (West 1992).

On the other hand, the Act imposes a one-year limitation period:

"No civil action may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued. For purposes of this Article, the term 'civil action' includes any action, whether based upon the common law or statutes or Constitution of this State." 745 ILCS 10/8-101 (West 1992).

The Act defines the term...