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

• Decision Date: 27 January 2014
• Docket Number: No. 114811.,114811.
• Citation: 2013 IL 114811,4 N.E.3d 15,378 Ill.Dec. 416
• Parties: Daniel HOOKER et al., Appellees, v. The RETIREMENT BOARD OF the FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, Appellant.
• Court: Illinois Supreme Court

2013 IL 114811

4 N.E.3d 15

378 Ill.Dec. 416

Daniel HOOKER et al., Appellees,

v.The RETIREMENT BOARD OF the FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, Appellant.

No. 114811.

Supreme Court of Illinois.

Dec. 19, 2013.

Rehearing Denied Jan. 27, 2014.

Mary Patricia Burns, Edward J. Burke, Vincent D. Pinelli and Madeleine S. Podesta, of Burke Burns & Pinelli, Ltd., of Chicago, for appellant.

Martin O. Holland, of Evergreen Park, for appellees.

OPINION

Justice BURKE delivered the judgment of the court, with opinion. Theis, J., filed a dissenting opinion, in which Kilbride, J., joined.

¶ 1 Section 6–140(a) of the Illinois Pension Code (40 ILCS 5/ 6–140 (West 2008)) defines the terms of the annuity available to a widow of a fireman whose death was the result of a performance of an act of duty. The primary issue presented in this case is whether a form of fireman's compensation known as “duty availability pay” must be included in the calculation of that annuity, even if the fireman never received such compensation while working as a firefighter. The appellate court concluded that it must. 2012 IL App (1st) 111625, 361 Ill.Dec. 704, 972 N.E.2d 189. For the reasons that follow, we reverse.

¶ 2 Background

¶ 3 Plaintiffs Elaine Hooker and June Murphy were married to Chicago firefighters. Elaine's husband, Michael Hooker, joined the Chicago fire department in 1967. He suffered a duty-related injury and was awarded a duty disability benefit in 1989. Michael died in 2000. June's husband, James Murphy, joined the Chicago fire department in 1966. He also suffered a duty-related injury and was awarded a duty disability benefit in 1985. James died in 1998.

¶ 4 Following the deaths of their husbands, plaintiffs were both granted an ordinary widow's pension by the defendant, the Retirement Board of the Firemen's Annuity and Retirement Benefit Fund of Chicago (Board), pursuant to section 6–141.1 of the Pension Code (40 ILCS 5/6–141.1 (West 2008)). In February of 2003, plaintiffs filed a complaint for administrative review of that decision in the circuit court of Cook County.

¶ 5 In their complaint, plaintiffs alleged that they were entitled, under section 6–140(a) of the Pension Code (40 ILCS 5/6–140(a) (West 2008)), to the annuity which is awarded to the widow of a fireman who died in the line of duty. Relying on 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), the circuit court entered an agreed order that plaintiffs were entitled to the section 6–140(a) annuity because their husbands' duty-related injuries were permanent and had prevented them from ever returning to active duty. The cause was then remanded to the Board for a calculation of benefits due to plaintiffs. The Board awarded plaintiffs section 6–140(a) benefits retroactive to the date of the Bertucci decision.

¶ 6 In September of 2006, the circuit court granted plaintiffs leave to file a three-count, first amended complaint. Count I of the complaint sought administrative review of the Board's decision on remand and alleged that plaintiffs were entitled to benefits retroactive to the date of their husbands' deaths, rather than the date of the Bertucci decision. Count II sought certification of the class of all widows similarly situated.

¶ 7 Count III raised a different matter. In this count, plaintiffs alleged that the calculation of their widow's annuity under section 6–140(a) had to include a type of fireman's compensation known as duty availability pay. Plaintiffs acknowledged that duty availability pay was not in existence at the time their husbands were firemen and that neither husband had received such compensation while employed by the Chicago fire department. Nevertheless, plaintiffs maintained that the Board was required to include duty availability pay in the calculation of the annuities which they received under section 6–140(a). Count III also sought certification of the class of all widows who were receiving section 6–140(a) annuities but had not had duty availability pay included in the determination of their benefits.

¶ 8 The circuit court stayed proceedings on plaintiffs' amended complaint. Thereafter, in December of 2007, the court vacated the Board's decision from the original order on remand, and directed the Board to pay plaintiffs benefits retroactive to the date of the death of each plaintiff's spouse. The Board appealed that decision and the appellate court affirmed. See 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). The Board subsequently awarded benefits to plaintiffs retroactive to the deaths of their husbands, as well as prejudgment and postjudgment interest.

¶ 9 Proceedings then went forward on plaintiffs' amended complaint. Because plaintiffs had been paid benefits retroactive to the date of their husbands' deaths, as well as interest, the circuit court concluded that count I of plaintiffs' complaint had been fully resolved and was moot. The court therefore dismissed count I.

¶ 10 With respect to count II, the court noted that plaintiffs, the named representatives of the putative class, no longer had a valid cause of action. Citing to Wheatley v. Board of Education of Township High School District 205, 99 Ill.2d 481, 77 Ill.Dec. 115, 459 N.E.2d 1364 (1984), the court determined that, for this reason, dismissal was required. See id. at 486, 77 Ill.Dec. 115, 459 N.E.2d 1364 (where the claims of the named representatives “have been resolved, they are not proper parties who would fairly and adequately protect the interest of the class they purport to represent”).

¶ 11 On count III, the parties filed cross-motions for summary judgment. Following argument, the court denied plaintiffs' motion, granted the Board's motion, and declined to certify the class. Plaintiffs then appealed the grant of the Board's motion for summary judgment. The appellate court reversed. 2012 IL App (1st) 111625, 361 Ill.Dec. 704, 972 N.E.2d 189.

¶ 12 The appellate court concluded that under the language of section 6–111(i) of the Pension Code (40 ILCS 5/6–111(i) (West 2008)), the Board was required to include duty availability pay in the calculation of an annuity awarded pursuant to section 6–140(a), even if duty availability pay was not received by the fireman. The appellate court also concluded that class certification was appropriate. The appellate court therefore reversed the judgment of the circuit court and remanded the cause to the circuit court for calculation of the appropriate award of annuities. We granted the Board's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Feb. 26, 2010).

¶ 13 Analysis

¶ 14 The Board's Appeal

¶ 15 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(c) (West 2010). The interpretation of a statute, such as the Pension Code, is a matter of law and thus presents a matter that is appropriate for summary judgment. Village of Chatham, Illinois v. County of Sangamon, Illinois, 216 Ill.2d 402, 433, 297 Ill.Dec. 249, 837 N.E.2d 29 (2005). Issues of statutory interpretation and summary judgment rulings are reviewed de novo. First American Bank Corp. v. Henry, 239 Ill.2d 511, 515, 347 Ill.Dec. 682, 942 N.E.2d 1262 (2011).

¶ 16 Section 6–140 of the Pension Code defines the terms of the annuities received by plaintiffs. That provision states, in relevant part:

“The annuity for the widow of a fireman whose death results from the performance of an act or acts of duty shall be an amount equal to 50% of the current annual salary attached to the classified position to which the fireman was certified at the time of his death and 75% thereof after December 31, 1972.” 40 ILCS 5/6–140(a) (West 2008).

Under section 6–140(a), the annuity is calculated based on “the current annual salary attached to the classified position to which the fireman was certified at the time of his death.” Id. This means that the amount of the annuity does not depend on the deceased fireman's actual salary at any time during his career. The amount of the annuity is instead “flexible, changing to reflect salary changes in the fire department.” Kozak v. Retirement Board of Firemen's Annuity & Benefit Fund, 95 Ill.2d 211, 215, 69 Ill.Dec. 177, 447 N.E.2d 394 (1983). Thus, for example, if the fire department increases the current pay for firemen at the position which the decedent had attained at the time of his death, the annuity under section 6–140 will increase, even though the decedent himself never received the increased pay.

¶ 17 Plaintiffs allege that, in addition to basing the annuity under section 6–140(a) on the salary attached to “the classified position to which the fireman was certified at the time of his death,” the annuity must also be calculated using a type of compensation known as “duty availability pay.” According to the parties, duty availability pay was created in the early 1990s pursuant to a collective-bargaining agreement between the firefighters' union and the City of Chicago. It is currently paid on a quarterly basis and is generally intended to compensate firefighters for being available for duty. For a number of years after it was created, duty availability pay was not included in the calculation of benefits under the Pension Code and, specifically, was not included in the Code's definition of “salary.”

¶ 18 In 2004, the Pension Code's treatment of duty availability pay changed when section 6–111 of the Code was amended to provide as follows:

“[T]he salary of a fireman * * * 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...