Encompass Insurance v. State of Illinois

ORDER

Birnbaum, J.

This matter having come before the Court on Respondent's Motion to

Dismiss and with the Court being fully advised in the premises; it is hereby ordered:

That on or about October 28, 2008, Claimant filed a complaint in the Illinois

Court of Claims seeking compensation for property damage caused by a fallen tree.

Claimant's complaint fails to provide a date when the tree allegedly fell and

damaged Claimant's property.

On or about June 3, 2010, Claimant filed an amended

complaint in this Court seeking $1,691.00 in damages.

The subject tree allegedly fell

in the southbound lane of Meyers Road approximately at the intersection with East

Morris Avenue in Lombard, Illinois.

Subsequently, Claimant brought suit against the Village of Lombard in the Circuit Court of DuPage County; Encompass Insurance Company v. Village of Lombard case number 2009 SC 005613.

However, Claimant voluntarily dismissed his claims [*138] against the Village of Lombard on September 8, 2009.

Additionally, on February 4, 2010, the matter of Encompass v. the Village of Lombard was dismissed for want of prosecution in the DuPage County Circuit Court.

Two years have passed since the accident and the statute of limitations has expired: Claimant can no longer exhaust its remedies against the Village of Lombard.

In the case of Hughes and Ocasek as Administrator of the Estate of Donna Scalflni v. The State of Illinois, 49 Ill.Ct.Cl. 56, (1997), this Court stated "Section 25 of the Court of Claims Act requires Claimants to exhaust all other remedies, whether administrative, legal, or equitable, before seeking determination of a claim by the Court of Claims, and the Claimants, by voluntarily dismissing their circuit court action for negligent maintenance of a roadway against a municipality, failed to exhaust their remedies."

Here Claimant voluntarily dismissed his claims against the Village of Lombard.

Therefore, Claimant has failed to exhaust all of his remedies.

This Court has previously held that it does not "seem to recognize any discretion on the part of Claimants to pick and choose whom they wish to sue."

Boe v. State, 37 Ill.Ct.Cl. 72 (1984).

In Boe, this Court quoted the holding from Lyons v. State, 34 Ill.Ct.Cl. 268,

271-72 (1981) stating:

The requirement that Claimant exhaust all available

remedies prior to seeking a determination in this Court is

clear and definite in its terms.

It is apparent to the Court

that Claimant had sufficient time to both become aware of

his other remedies and to pursue them accordingly.

The fact

that Claimant can no longer pursue those remedies cannot

be a defense to the exhaustion requirement.

If the Court

were to waive the exhaustion of remedies requirement

merely because Claimant waited until it was too late to avail

himself of the other remedies, the requirement would be [*139]

transformed into an option, to be accepted or ignored

according to the whim of all claimants.

We believe that the

language of Section 25 of the Court of Claims Act (Ill. Rev:

Stat. 1979, ch 37, par. 439.24-5) and Rule 6 of the Rules of

the Court of Claims quite clearly makes the exhaustion of

remedies mandatory rather than optional.

Moreover, Section 790.90 of the Court of Claims Rules demands dismissal if

there is not compliance with the provisions in Section 790.60 requiring exhaustion

of remedies.

74 Ill.Adm. Code 790.90.

The Claimant has not complied with Court of

Claims Regulation Section 790.60 and Court of Claims Act Section 505/25.

74 Ill.

Adm. Code 790.60 and 705 ILCS 505/25.

Based upon the foregoing, it is hereby ordered Respondent's Motion to

Dismiss is granted and the case dismissed in its entirety with prejudice.