Cases handed down since January 1, 1999
OPINIONS

ABANDONED SHIPWRECK ACT

People ex rel. Illinois Historic Preservation Agency v. Zych, No. 84514 (4/15/99). Appellate court rev'd; circuit court aff'd.

In litigation involving salvage of 1860 wreck of Lady Elgin, evidence supported circuit court's finding that ship's insurer accepted abandonment after paying on loss, so that ownership of wreckage passed to insurer and thus to insurer's successor, so that appellate court's reversal, based on conclusion that insurer had shown complete disinterest in ship even after technology existed to find vessel, was improper reevaluation of disputed facts.

ADMINISTRATIVE REVIEW

Carver v. Nall, No. 86641 (7/1/99). Adams Co. Aff'd.

Circuit court properly dismissed complaint for administrative review against sheriff and members of sheriff's merit commission where plaintiff files complaint but failed to have summons issue within 35 days of being notified of commission's decision; strict adherence to Administrative Review Act is required, attorney's assumption that clerk would issue summons without making any request that clerk do so did not constitute good-faith effort exception to timeliness requirement, commission was not required to inform plaintiff that its decision was reviewable under ARA since it is county agency, not state agency, and right to appeal from an administrative decision is not essential to due process.

APPEALS

Berg v. Allied Security, Inc., Nos. 85967, 85974 (cons.) (7/1/99). Cook Co. Aff'd.

Postjudgment motion which was clearly identifiable as such, was directed at circuit court's judgment, and included explicit request that judgment be reconsidered and reversed met requirements of 735 ILCS 5/2-1203 and operated to toll period for filing notice of appeal under SCR 303(a), notwithstanding any lack of specificity that may have warranted motion's denial; plaintiff appropriately waited to file notice of appeal until trial court disposed of prayer for leave to amend, though court had already denied request for reconsideration.

CONSUMER FRAUD ACT

Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., No. 83822 (6/17/99). Cook Co. Aff'd in part, rev'd in part; remanded.

Lender did not violate Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 et seq., by charging loan applicants mortgage assignment recording fee and tax escrow suspension fee where lender complied with disclosure requirements of Real Estate Settlement Procedures Act, 12 U.S.C. § 2501 et seq., since 815 ILCS 505/10b(1) provides defense to liability under such circumstances; allegations of complaint regarding lender's charging an escrow suspension fee were insufficient to state cause of action for violation of Consumer Fraud Act, so that remaining claim was properly dismissed.

CONTRACTS

Air Safety, Inc. v. Teachers Realty Corporation, No. 85005 (1/22/99). Cook Co. Aff'd.

"Four corners" rule precludes consideration of extrinsic evidence where contract contains integration clause providing that contract represents entire and integrated agreement between parties and supersedes all prior negotiations, and is facially unambiguous; court declines to rule on whether "provisional admission" or "extrinsic ambiguity" approach may be applied to interpret contract which does not contain integration clause.

EMPLOYMENT

Wilson v. Norfolk & Western Railway Company, No. 85821 (6/17/99). Madison Co. Rev'd and remanded.

Plaintiff must plead and prove physical contact or the threat of physical contact as a result of his employer's acts in order to recover for intentional infliction of emotional distress under Federal Employers' Liability Act, 45 U.S.C. § 51 et seq.

EMPLOYMENT CONTRACTS

Doyle v. Holy Cross Hospital, No. 83875 (2/19/99). Cook Co. Appellate court aff'd; circuit court rev'd.

Defendant employer's unilateral modification to employee handbook to disclaim existence of contract and provide for at-will termination lacked consideration as to plaintiff employees hired prior to modification and therefore was not binding on them; plaintiffs' continuation of their employment with defendant did not constitute consideration; Duldulao's reference to continued work applies only where employer who did not previously have employee handbook decides to promulgate one. (Dissent)

IMMUNITY

Henrich v. Libertyville High School, No. 84094 (12/3/98; supplemental opinion issued on denial of rehearing 6/1/99). Lake Co. Aff'd.

Tort claim against public school and its employees alleging willful and wanton misconduct is controlled not by School Code but instead by Tort Immunity Act, 745 ILCS 10/3-108(a), since "local public entity" expressly includes school district under 745 ILCS 10/1-206; legislature thereby chose to grant public school teachers and districts greater immunity than private schools and teachers. Amended § 3-108, effective 12/2/98, which expressly allows claims of willful and wanton misconduct against local public entities and employees, does not apply because school district has vested right to total immunity provided by unamended § 3-108.

INSURANCE

Employers Insurance of Wausau v. Ehlco Liquidating Trust, No. 84684 (1/22/99). Cook Co. Aff'd in part, rev'd in part; remanded with directions.

While complaint filed under CERCLA against insured together with previously executed consent decree in federal district court in state of Arkansas satisfied definition of "suit" in Lapham-Hickey Steel Corp. v. Protection Mutual Ins. Co., 166 Ill.2d 520 (1995), despite undisputed fact that insured had notified insurer of EPA's intention to file suit, pleadings failed to demonstrate that insurer had actual notice of suit, once filed, in order to trigger insurer's duty to defend; parties given leave to amend pleadings to address issue on remand; insurer breached duty to defend insured as to separate suit filed in state of Wyoming where insured provided notice of suit less than 60 days after filing date, and late-notice exception to estoppel doctrine did not apply; circuit court properly awarded insured attorney fees and costs under 215 ILCS 5/155 (West 1994).

State Farm Fire & Casualty Co. v. Martin, No. 85659 (4/15/99). Madison Co. Rev'd. Insurer preserved its right to raise policy defenses to coverage by seeking declaratory judgment as to its responsibilities and was not required to actually secure judgment in its favor prior to denying coverage and refusing to defend policyholder who had engaged tenant to set fire to building and was then sued for wrongful death of 2 firefighters; policyholder's actions in so doing fell within "willful and malicious" policy exclusion.

NEGLIGENCE

Abbasi v. Paraskevoulakos, No. 85835 (7/1/99). Cook Co. Appellate court rev'd; circuit court aff'd; remanded.

Implication of private right of action under Lead Poisoning Prevention Act, 410 ILCS 45/1 et seq., and Chicago Municipal Code is unnecessary to implement public policy, since plaintiff has adequate remedy in form of negligence action.

NURSING HOME CARE ACT

Dardeen v. Heartland Manor, Inc., No. 85917 (4/15/99). Clark Co. Aff'd.

Amendment to 210 ILCS 45/3-602 (West 1996) repealing treble damages provision and otherwise limiting recovery for violations of Nursing Home Car Act did not interfere with plaintiff's vested rights and therefore was properly applied to pending claims arising prior to effective date of amendment.

REAL ESTATE

Board of Directors of Bloomfield Club Recreation Ass'n v. The Hoffman Group, Inc., No. 85333 (5/20/99). DuPage Co. Aff'd.

Implied warranty of habitability does not extend to clubhouse in residential development, since clubhouse is merely amenity and any defects do notaffect habitability of nearby residential dwellings, so that circuit court properly dismissed complaint for breach of such warranty and refused leave to amend.

RES JUDICATA

DeLuna v. Treister, Nos. 83119, 83171 (cons.) (2/19/99). Cook Co. Aff'd in part, rev'd in part; remanded.

Involuntary dismissal for failure to comply with 735 ILCS 5/2-622 constitutes adjudication upon the merits, pursuant to SCR 273, so that plaintiff was precluded from refiling medical malpractice claim against physician; however, defendant hospital was not entitled to dismissal of respondeat superior action on that basis because res judicata defense was personal to physician and not available to hospital.

SCHOOL CODE

Hearne v. Illinois State Board of Education, Nos. 84242, 84311 (cons.) (1/22/99). Cook Co. Remanded with directions.

Circuit court unnecessarily reached plaintiff's constitutional challenge to 105 ILCS 5/34-85 (West 1996) in both holding statute violated plaintiff's due process rights and simultaneously awarding plaintiff relief under statute, so that court would be required to vacate order and enter modified order to exclude ruling of unconstitutionality.

SCHOOL LAW

Lewis E. v. Spagnolo, No. 83382 (4/15/99). St. Clair Co. Appellate court aff'd in part, rev'd in part; circuit court aff'd in part, rev'd in part; remanded.

Complaint seeking declaratory judgment that plaintiffs had right to safe, adequate education and order directing defendants to implement plan to correct deplorable conditions alleged of East St. Louis public schools was properly dismissed, since questions relating to quality of education are solely for legislative branch to answer, and plaintiffs might not state claims based on violation of education article of Illinois constitution or due process violations under either U.S. or Illinois constitutions; plaintiffs alleging merely that defendants violated "common law duties" without specifying what those duties were or what acts or omissions breached those duties failed to state common law claim; plaintiffs failed to state cause of action under School Code but were entitled on remand to file amended complaint attempting to state action for writ of mandamus to compel compliance with official duties under Code.

TAX DEED

A.P. Properties, Inc. v. Goshinsky, No. 86101 (7/1/99). Lake Co. Aff'd.

Purchaser of tax sale certificate is not a creditor of property owner and therefore is not entitled to seek relief under Uniform Fraudulent Transfer Act, 740 ILCS 160/1 et seq.; 35 ILCS 200/21-380, which requires filing of redemption under protest form, applies only to people seeking to redeem under protest and not to all who wish to redeem after petition for tax deed has been filed.

TAXATION

Arangold Corporation v. Zehnder, No. 85366 (7/1/99). Cook Co. (direct appeal). Rev'd.

P.A. 89-21, which enacted Tobacco Products Tax Act of 1995 (35 ILCS 143/10-1 et seq.), does not violate single subject rule of Illinois Constitution because all provisions have natural and logical connection to legislature's expressed purpose, implementation of state's budget for 1996 fiscal year.

In Re Application of County Collector of DuPage County, No. 85204 (6/17/99). DuPage Co. Aff'd.

Phrase "for such fiscal year" in 105 ILCS 5/17-1 is ambiguous and may refer either to fiscal year in which tax levy is made or to fiscal year in which proceeds of levy will be spent; purposes of legislation are best advanced by accepting tax collector's interpretation, so that levy made during fiscal year in which school district had sufficient cash to meet its budget, and prior to budget for following fiscal year being adopted, was not violation of statute.

Streeterville Corporation v. Department of Revenue, No. 86138 (7/1/99). Cook Co. Appellate court rev'd; circuit court aff'd; remanded.

Plaintiff was entitled to partial real estate tax exemption under 35 ILCS 205/19.16 for parking garage used 74% for tax-exempt hospital personnel, despite failure to designate certain space solely for their use.