Illinois Bell Telephone Co. d/b/a Ameritech Illinois v. State of Illinois

ORDER

PATCHETT, J. This matter coming to be heard on the motion of Respondent to dismiss the claim herein, and it appearing to the Court that Claimant has received due notice, and the Court being fully advised in the premises finds that: On January 9, 2002, Claimant filed a claim against the Illinois Department of Transportation, (“IDOT”), alleging damage to one of its underground cables in Madison County, Illinois, as stated in Case No. 02CC3374. On February 14, 2002, Respondent filed a Motion for Change of Commissioner in Case No. 02CC3374. On February 27, 2002, Claimant filed a Response to Respondent’s motion, and a Motion to for Leave to file an [*264] Amended Complaint in Case No. 02CC3374. On April 5, 2002, Claimant filed a claim against the Illinois Department of Transportation, (“IDOT”), alleging damage to one of its underground cables in Cook County, Illinois, as stated in Case No. 02CC4558. On May 8, 2002, Respondent’s motion to change commissioner was denied and Claimant was given thirty days to file an amended complaint. On May 14, 2002, Claimant filed a Motion to Consolidate the above cases. On August 14, 2002, this Court granted Claimant’s Motion and ordered that Case No. 02CC4558 be consolidated into Case No. 02CC3374.

This claim addresses the issue of whether or not the State should be granted immunity for work performed in the right-of-way when said work relates to the ownership and maintenance of the highway right-of-way. The conduct complained of involves the replacement of a sign post by the Illinois Department of Transportation within the State’s right-of-way. The Claimant has argued that the statutory law found in the Underground Utility Facility Damage Prevention Act, 200 ILCS 50/1 et. Seq., applies to the conduct of the State creating liability for its actions. The Respondent claims that the conduct of the State falls within the language in 605 ILCS 5/9-113(g), which provides for complete immunity for those damages caused to private property located in the right-of-way pursuant to permit issued with the permission of said Statute. In order to decide this motion this Court must reconcile these two Statutes.

In an effort to guide its decision, this Court has reviewed case law and has been able to find only one prior case dealing specifically with the Highway Code and injury to private property located within the right-of-way.

Specifically, the Court would look to the Village of Harristown v. Illinois, 48 Ill.Ct.Cl. 424 (1996). In Village of Harristown this Court determined that there is a limitation as to the immunity supported by the Illinois Highway Code.

Village of Harristown, 48 Ill.Ct.Cl. at 426-7. Specifically that the Illinois Department of Transportation would receive immunity for those activities which relate to the ownership, operation and maintenance or use of the right-of-way.

Village of Harristown, 48 Ill.Ct.Cl. at 428. In this particular matter the State was involved in the mowing of the right-of-way when some property belonging to the Village of Harristown was damaged as a result of the mowing. Village of Harristown, 48 Ill.Ct.Cl. at 425. Upon review, we found that the activity of mowing was clearly related to the ownership and maintenance of the right-ofway. Village of Harristown, 428 Ill.Ct.Cl. at 428. It was “the kind of activity that was plainly intended to be immunized against liability to those using the property under permit.” Id. At that time we indicated that examination of the activity being conducted within a right-of-way must be conducted on a “case by case and fact dependent” basis. Id. What was true then is still true today. The activity alleged in this particular matter indicates that the State was replacing a sign post, which was located within their right-of-way. Clearly this activity would fall under the description of maintenance activities as defined in the Village of Harristown and absent the existence of the Underground Utility Facility Damage Prevention Act, this matter would be moot. However, we must reconcile these States with one another.

[*265] The Illinois Highway Code was enacted as early as 1959 and remains relatively unchanged from that time. The Act, which the Claimant favors, the Underground Utility Facility Damage Prevention Act, was enacted in 1991, significantly later than the original Highway Act. Legislative history does not suggest that the latter was intended to preempt the former. Upon specifically reviewing the Statute in question, it is found in Section 8(b) of the Underground Utility Facility Damage Prevention Act states in part: Nothing in this Act shall be deemed to provide for liability of financial responsibility of the Department of Transportation, its officers and employees concerning any underground utility facility or CATS facility located on highway rightof-way by permit issued under the provisions of Section 9-113 of Illinois Highway Code. 220 ILCS 50/8(b) (West 2004). It would appear that this Section of the Act was intentionally placed in the Act in order to continue to provide for the immunity of Section 9-113 of the Illinois Highway Code. Although it is clear that the Act requires the State to comply with portions of the Act such as making contact with J.U.L.I.E. and determining the location of underground cables prior to conducting the work within the right-of-way, this Section would appear to be an intentional act by the General Assembly to continue to provide immunity in spite of any of the other provisions provided within the Act Assuming said activity was the type of activity contemplated to be protected by the Illinois Highway Code.

This Court has requested that the state’s counsel provide it with its Departmental Report in order to determine whether or not this particular utility was granted use of the right-of-way pursuant to a permit issued under the provisions of Section 9-113 of the Illinois Highway Code. Absent a simple affidavit or a Departmental Report indicating facts supporting this assertion, this Court is unable to grant the motion of the State as it stands.

IT IS HEREBY ORDERED that the Respondent be granted 28 days to file its Departmental Report or provide this Court with an affidavit indicating whether or not a permit was issued to the Claimant for the use of the right-ofway pursuant to the Illinois Highway Code. In the event that the Respondent provides sufficient factual proof that the Claimant did in fact receive that permit, the motion of Respondent will be granted and the portion of the claim previously identified as Case No. 02CC4558 herein is dismissed with prejudice.

If Respondent fails to or is unable to provide this Court with facts sufficient for a showing that Claimant’s use is pursuant to Section 9-113 of the Illinois Highway Code then the Respondent’s motion is denied.

[*266] ORDER

STORINO, J. This cause having been previously before this Court on Respondent’s Motion to Dismiss, the matter having been fully briefed, argued and conditionally decided by this Court.

IT IS HEREBY ORDERED THAT:

1. Respondent’s motion to dismiss is denied, as previously ordered by this Court on August 18, 2004, due to Respondent inability to provide this Court with sufficient information showing that Claimant’s use of the right-of-way was pursuant to section 9- 113 of the Illinois Highway Code. The arguments presented in Respondent’s motion to dismiss may be revisited on a motion for summary judgment.

2. Case No. 02CC4558 shall remain consolidated into this Case No. 02CC3374.

3. All discovery in this matter shall commence immediately and shall close on June 1, 2006.

4. Dispositive motions shall be filed on or before August 1, 2006.

ORDER

STORINO, J. This cause coming before this Court on Claimant’s Motion to Voluntarily Dismiss Claim, due notice having been given, Respondents having no objection, and this Court being advised in the premises.

IT IS HEREBY ORDERED.

1. Claimant’s motion to voluntarily dismiss claim is granted. Accordingly, this matter is voluntarily [*267] dismissed without prejudice and with leave to reinstate. 2. All future dates previously set in this matter are hereby stricken.