Hooker v. Ret. Bd. of the Firemen's Annuity & Benifit Fund of Chi.

• Decision Date: 18 July 2012
• Docket Number: No. 1–11–1625.,1–11–1625.
• Citation: 2012 IL App (1st) 111625,972 N.E.2d 189,361 Ill.Dec. 704
• Parties: Daniel HOOKER, as Special Representative/Heir and June E. Murphy, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs–Appellants, v. RETIREMENT BOARD OF the FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

2012 IL App (1st) 111625

972 N.E.2d 189

361 Ill.Dec. 704

Daniel HOOKER, as Special Representative/Heir and June E. Murphy, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs–Appellants,

v.RETIREMENT BOARD OF the FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, Defendant–Appellee.

No. 1–11–1625.

Appellate Court of Illinois, First District, Third Division.

May 9, 2012.

Modified Upon Denial of Rehearing July 18, 2012.

Martin O. Holland, Evergreen Park, for appellants.

Burke Burns & Pinelli, Ltd., Chicago (Mary Patricia Burns, Vincent D. Pinelli, Madeleine S. Podesta, of counsel), for appellee.

OPINION

Justice NEVILLE delivered the judgment of the court, with opinion.

[361 Ill.Dec. 706]¶ 1 In this case we must interpret sections 6–111 and 6–140 of the Illinois Pension Code (Code) (40 ILCS 5/6–111, 6–140 (West 2008)). Two widows of firefighters sued the Retirement Board of the Firemen's Annuity and Benefit Fund (Board) for a judgment declaring that the Board must include duty availability pay (DAP) in the current salary attached to the applicable positions for purposes of calculating the widows' annuities under section 6–140 of the Code. The widows sought certification of the class of all similarly situated widows. The trial court granted the Board summary judgment on the complaint, but it refused to certify the class. On the widows' appeal, we hold that section 6–111 requires the inclusion of DAP in the current salary attached to all firefighter positions, including the positions attained by the widows' husbands, for purposes of calculating annuities under section 6–140. We also find that the trial court abused its discretion when it refused to certify the proposed class. Therefore, we reverse and remand for further proceedings in accord with this opinion.

¶ 2 BACKGROUND

¶ 3 James Murphy began working for the Chicago fire department in 1966. In 1985, he suffered a stroke while responding to a fire. The Board awarded James a duty disability benefit under section 6–151 of the Code (Ill.Rev.Stat.1985, ch. 108 1/2, ¶ 6–151, (now see 40 ILCS 5/6–151 (West 2008))). James died in 1998. His widow, June Murphy, filed a claim with the Board for benefits. The Board awarded June the widow's minimum annuity. See 40 ILCS 5/6–141.1 (West 2000).

¶ 4 Michael Hooker began working for the Chicago fire department in 1967. He suffered a debilitating injury while working for the fire department in 1988. The Board awarded him a duty disability benefit. Michael died in 2000. Michael's widow, Elaine Hooker, applied to the Board for benefits. The Board awarded Elaine the widow's minimum annuity.

¶ 5 Both June and Elaine thought the Code entitled them to the annuities for widows of firemen who died in the line of duty. See 40 ILCS 5/6–140 (West 2000). They filed a complaint for administrative review of their awards of the minimum annuity. The trial court, following Bertucci v. Retirement Board of the Firemen's Annuity & Benefit Fund, 351 Ill.App.3d 368, 286 Ill.Dec. 328, 813 N.E.2d 1021 (2004), entered a judgment requiring the Board to award June and Elaine the line-of-duty death benefits prescribed in section 6–140 of the Code. See 40 ILCS 5/6–140 (West 2000). The Board made the benefits retroactive to the date the appellate court published Bertucci.

¶ 6 In 2004, the General Assembly adopted Public Act 93–654, which amended the Code to expand the reach of the Code and to increase some of the benefits available under the Code. Pub. Act 93–654 (eff. Jan. 1, 2004). The Code, as amended, required the Board to include DAP in the salaries of some employees for purposes of the pension and annuity calculations. June and Elaine interpreted the amendment to increase their benefits. They also believed the Code required the Board to award the line-of-duty retroactively to the dates their husbands died. June and Elaine amended their complaint for administrative review to seek further review for the Board's revised decision, asking for the increased line-of-duty benefits from the dates of their husbands' deaths, and not at the date of the Bertucci decision.

¶ 7 They also sought, in a second count of their amended complaint, a judgment declaring that the Board miscalculated the benefits when it did not include DAP in the calculation of their annuities, with the addition of DAP to increase the annuities starting on the effective date of Public Act 93–654. They asked leave to bring the claim in the second count, related to DAP, as a class action.

¶ 8 June and Elaine defined the proposed class as:

“all surviving spouses (widows) of Chicago firefighters who:

a. were determined by the Board to be permanently and duty disabled under section 6–151 and 6–151.1 of the Code as a result of injuries or illnesses received in the course of their duties so as to be unable to return to active duty prior to their death; and,

b. died * * * prior to reaching the age of retirement.”

They added a further qualification, that the class members must have the right to receive benefits pursuant to section 6–140 of the Code. They presented to the court a list of more than 100 widows who, accordingto June and Elaine, met the criteria for inclusion in the proposed class. They claimed that the Board systematically denied all class members part of the annuities owed to the class members, because the Board did not include DAP in the calculation of the annuities.

¶ 9 The trial court permitted June and Elaine to file the amended complaint, but the court stayed proceedings on the class action claim pending resolution of the first count. The court reversed the Board's decision limiting June's and Elaine's benefits, and ordered the Board to pay June and Elaine benefits prescribed by section 6–140 of the Code retroactively to the dates of their spouses' deaths. The Board appealed and this court affirmed the decision. Hooker v. Retirement Board of the Firemen's Annuity & Benefit Fund, 391 Ill.App.3d 129, 329 Ill.Dec. 856, 907 N.E.2d 447 (2009).

¶ 10 On remand, the Board paid June and Elaine benefits under section 6–140, but it did not include DAP in its calculation of the amount due under that section. The Board argued that the Code required no adjustment to the annuities for DAP because James and Michael never received DAP. The trial court denied June and Elaine's motion to certify the class, and the court granted the Board's motion for summary judgment on the complaint. June and Elaine now appeal.

¶ 11 ANALYSIS

¶ 12 Duty Availability Pay

¶ 13 This case turns on the interpretation of a statute, and thus it presents a question of law that we review de novo. Michigan Avenue National Bank v. County of Cook, 191 Ill.2d 493, 503, 247 Ill.Dec. 473, 732 N.E.2d 528 (2000). We must ascertain and give effect to the legislature's intent. Michigan Avenue, 191 Ill.2d at 503–04, 247 Ill.Dec. 473, 732 N.E.2d 528. To do so we look first to the plain and ordinary meaning of the statutory language, viewing all provisions of the statute as a whole and interpreting each section of the statute in light of other relevant statutory provisions. Michigan Avenue, 191 Ill.2d at 504, 247 Ill.Dec. 473, 732 N.E.2d 528.

¶ 14 In Public Act 93–654, the legislature modified the calculation of pensions and annuities for firefighters and their families. Some sections of the Code make payments to the firefighters and their families depend on the amount the firefighters received in salary when they worked as firefighters. See, e.g.,40 ILCS 5/6–123 (West 2008) (annuity based on salary firefighter received one year prior to retirement); 40 ILCS 5/6–124.1 (West 2008) (annuity based on average salary for 10–year period plus a percentage of salary earned in other years). Other sections of the Code make the payments to the firefighters and their families depend only on the “current annual * * * salary attached to the classified * * * position” the firefighter had attained before his death or retirement. 40 ILCS 5/6–148 (West 2008).

¶ 15 Section 6–111 of the Code, as amended, provides:

“(i) Beginning on the effective date of this amendatory Act * * * [Public Act 93–654] (and for any period prior to that date for which contributions have been paid under subsection (j) of this Section), the salary of a fireman, as calculated for any purpose under this Article, shall include any duty availability pay received by the fireman * * *, and references in this Article to the salary attached to or appropriated for the permanent assigned position or classified career service rank, grade, or position of the fireman shall be deemed to include that duty availability pay.

(j) An active or former fireman who received duty availability pay at any time after December 31, 1994 and before the effective date of this amendatory Act * * * who * * * retired during that period * * * may elect to have that duty availability pay included in the calculation of his or her salary for any portion of that period for which the pay was received, by applying in writing and paying to the Fund, before January 1, 2006, the corresponding employee contribution, without interest.

* * *

In the case of an active or former fireman who (i) dies before January 1, 2006 without making an election under this subsection and (ii) was eligible to make an election under this subsection at the time of death (or would have been eligible had the death occurred after the effective date of this amendatory Act), any surviving spouse, child, or parent of the fireman who is eligible to receive a benefit under this Article based on the fireman's salary may make that election and pay the required contribution on behalf of the deceased fireman. * * *

Any duty availability pay for which the corresponding employee contribution has not been paid shall not be included in the calculation of salary.” 40 ILCS 5/6–111(i), (j) (West 2008).

¶ 16 Section 6–140, which applies to June, Elaine, and all members of the proposed class, provides:

“The annuity for the widow of...