Rapacz v. Township High School Dist. No. 207

• Citation: 2 Ill.App.3d 1095,278 N.E.2d 540
• Decision Date: 29 November 1971
• Docket Number: No. 55128,55128
• Parties: Theresa K. RAPACZ, Plaintiff-Appellant, v. TOWNSHIP HIGH SCHOOL DISTRICT NO. 207 et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 540

278 N.E.2d 540

2 Ill.App.3d 1095

Theresa K. RAPACZ, Plaintiff-Appellant, v. TOWNSHIP HIGH SCHOOL DISTRICT NO. 207 et al., Defendants-Appellees.

No. 55128.

Appellate Court of Illinois, First District, First Division.

Nov. 29, 1971.

Synek, Bishart & Solomon, Chicago (Henry T. Synek, Chicago, of counsel), for appellant.

Baker & McKenzie, Chicago (Francis D. Morrissey and Michael K. Murtaugh, Chicago, of counsel), for appellees.

GOLDBERG, Justice.

Theresa K. Rapacz (plaintiff) filed her amended complaint against Township High School District No. 207 (District) and Insurance Company of North America (Insurer). She sought damages for personal injuries allegedly suffered by plaintiff as a result of negligence of the District. Both the District and Insurer joined in a motion to dismiss the complaint because of service by plaintiff upon the District of a defective notice of the occurrence. By a so-called answer to the motion to dismiss, plaintiff alleged constitutional infirmities in the applicable statute. Upon hearing, the trial court found the challenged sections to conform to constitutional requirements and dismissed the amended complaint as against the District and the Insurer because of failure of plaintiff to serve a proper statutory notice. The order directed, however, that the action proceed against a third defendant, Tonyan Brothers, Inc., whose rights are not in issue here. Plaintiff appeals.

It appears from the well pleaded allegations of the amended complaint that plaintiff was injured in a school building operated by the District. Plaintiff alleged that she was in the exercise of due care and that the District and its employees were guilty of various specified negligent acts and omissions which were the proximate cause of plaintiff's injuries. The amended complaint also alleged that the District maintained a policy of liability insurance with the Insurer and that this policy contained a waiver of right to refuse payment or deny liability, within policy limits, by reason of non-liability of the District for negligence '* * * and its immunity from suit by reason of the defenses and immunities provided in the Local Government Tort Immunity Act.' This is the type of waiver authorized and required by the applicable statute. Ill.Rev.Stat.1969, ch. 85, par. 9--103.

The amended complaint also alleged, and it is agreed by the parties, that, although plaintiff was injured on September 25, 1968, the written statutory notice served upon the District on March 19, 1969 described the date of the occurrence as September 25, 1967. The statutory provisions regarding notice are set forth in Ill.Rev.Stat.1969, ch. 85, pars. 8--102 and 8--103.

Plaintiff urges reversal of the order of dismissal on the grounds that lack of proper notice to the District is among the defenses which have been waived by the Insurer. Plaintiff contends that, if the contrary be assumed or determined so that lack of proper statutory notice is not construed to be a defense under the statute, then Sections 8--102, 8--103 and 9--103 are all violative of Section 22 of Article IV and Section 2 of Article II of the Constitution of Illinois, S.H.A. and also of the 14th Amendment of the Constitution of the United States. The final argument advanced by plaintiff is that since the error in the notice is merely typographical and since both the District and the Insurer had actual knowledge of the occurrence within the required six-month period, the notice should be deemed sufficient.

Before considering these contentions, one matter requires disposition. It is the established law of Illinois that the public policy of this State prohibits joining a direct action against an insurer with a suit to enforce tort liability of the insured. This principle, and the rationale upon which it is based, are clearly set forth by the Supreme Court of Illinois in Marchlik v. Coronet Insurance Co., 40 Ill.2d 327, 239 N.E.2d 799. Marchlik has been followed by this court in Sims v. Sneed, 118 Ill.App.2d 294, 254 N.E.2d 316. This question has been raised only obliquely in the briefs before us. However, we are obliged to adhere to the public policy of Illinois as enunciated by the Supreme Court and by this court. It follows that plaintiff in this case may not maintain a direct action against the Insurer in conjunction with its action against the District. Therefore, the judgment of the Circuit Court dismissing the suit as to the Insurer is necessarily affirmed.

We next consider the basic action of plaintiff against the District. This involves a determination of the sufficiency of the notice under Section 8--102 of the pertinent statute and of whether Section 8--103, requiring dismissal upon failure to comply with the notice requirement, is applicable. Section 8--102 requires that the notice contain '* * * the date and about the hour of the accident * * *.' It will be remembered that plaintiff was injured on September 25, 1968 and the notice served upon the District set forth the date as September 25, 1967. Plaintiff urges strongly that this was merely a typographical error and that the District had actual knowledge so that dismissal of the case is unnecessarily harsh. The rules of stare decisis require that this argument be rejected. The courts of this jurisdiction have traditionally and consistently held that statutes requiring the giving of notice of injuries or accidents to municipalities of every kind are strictly construed and must be followed with complete adherence to each prescribed detail. Where required by the statute, as in the case at bar, dismissal of the suit must necessarily result from a defect in the notice.

We believe that the earliest case in Illinois establishing this doctrine is Ouimette v. City of Chicago, 242 Ill. 501, 90 N.E. 300 (1909). In that case, plaintiff was injured on October 10, 1905 and the notice specified November 10, 1905. The suit was dismissed. We will not attempt to cite all of the subsequent cases which have adhered to this rule. We will mention only the following: Williams v. City of Gibson, 129 Ill.App.2d 431, 263 N.E.2d 138 (discrepancy of one day); Fannon v. City of Aurora, 106 Ill.App.2d 408, 245 N.E.2d 286 (requirement of personal service of notice not satisfied by mail service); Sappington v. Sparta Municipal Hospital District, 106 Ill.App.2d 255, 257, 245 N.E.2d 262 (actual notice cannot replace formal statutory notice); Riddle v. City of Marion, 44 Ill.App.2d 11, 193 N.E.2d 877 (one month discrepancy in the date); and Frowner v. Chicago Transit Authority, 25 Ill.App.2d 312, 167 N.E.2d 26 (variation of three days between notice and occurrence). These authorities require that we reject plaintiff's argument that the notice served here constituted statutory compliance so that the judgment of dismissal as to the District should be affirmed.

However, plaintiff strongly urges that the waiver contained in the policy written by the Insurer, as required in Section 9--103 of the pertinent statute, actually constitutes a waiver of the defense created by Sections 8--102 and 8--103; and, consequently, that plaintiff should be permitted to maintain this action.

Two factors compel our rejection of this argument. A policy of insurance is simply a contract between the insurance company and the policyholder. In the case at bar, the parties to the contract are the District and the Insurer. The contract does not impose a direct or primary liability upon the insurer but creates only a liability which is best described as 'strictly derivative', Garb v. Harris, 87 Ill.App.2d 437, 232 N.E.2d 83. See also Pohlman v. Universal Mutual Casualty Co., 12 Ill.App.2d 153, 138 N.E.2d 848. This liability is enforceable for plaintiff's benefit only after plaintiff has obtained judgment against the District. It follows that plaintiff may not take advantage of, or benefit from, any waiver set forth in the policy issued by Insurer to the District. The District has never waived its right to assert the defense of inadequate notice granted to it by the statute and plaintiff presently has no cause of action against the Insurer.

The second reason for rejection of plaintiff's argument of waiver requires a brief statement of the long and rather complicated history of tort liability of municipalities in Illinois. For many years prior to 1959, the courts of Illinois adhered to 'the ancient and established doctrine of governmental immunity from tort liability' Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 29, 163 N.E.2d 89, 98. We learn from Molitor that this doctrine was not a statutory creation but was adopted by the courts as part of the common law of this State. However, as an exception to the common law rule, school districts and charitable corporations were deemed subject to tort liability to the extent that they had obtained insurance which would protect the charitable trust funds or the public funds of the school district from depletion. Moore v. Moyle, 405 Ill. 555, 92 N.E.2d 81 cited in Molitor, 18 Ill.2d 11 at 35, 163 N.E.2d 89.

Despite a strong and well-reasoned dissent, the Supreme Court of Illinois, in Molitor, swept away the common law doctrine of governmental immunity and held that a school district was liable in tort for the negligence of its employees. Hardly before the ink had dried upon this decision, and pending consideration of a petition for rehearing, the Legislature enacted statutes attempting to restore the common law principle to some extent with reference to various municipalities. See dissenting opinion in Molitor, 18 Ill.2d 11 at 42, 163 N.E.2d 89. Additional statutes were adopted from time to time. Some of them were invalidated by our Supreme Court for constitutional reasons. See Harvey v. Clyde Park District, 32 Ill.2d 60, 203 N.E.2d 573 and Hutchings v. Kraject, 34 Ill.2d 379, 215 N.E.2d 274.

The present statute is an outgrowth and a refinement of this legislation. This statute was originally...